Supreme Court of India

Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018

Equivalent citations: AIR 2018 SC (SUPP) 1841, 2019 (1) SCC 1, (2018) 12 SCALE 1, (2018) 4 CURCC 1, (2018) 255 DLT 1, 2018 (4) KCCR SN 331 (SC), AIRONLINE 2018 SC 237

Author:
A.K. Sikri

Bench:
Chief Justice
,
A.K. Sikri
,
A.M. Khanwilkar
,
D.Y. Chandrachud
,
Ashok Bhushan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 494 OF 2012

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

VERSUS

UNION OF INDIA AND OTHERS .....RESPONDENT(S)

WITH

TRANSFERRED CASE (CIVIL) NO. 151 OF 2013

TRANSFERRED CASE (CIVIL) NO. 152 OF 2013

WRIT PETITION (CIVIL) NO. 833 OF 2013

WRIT PETITION (CIVIL) NO. 829 OF 2013

TRANSFERRED PETITION (CIVIL) NO. 1797 OF 2013

WRIT PETITION (CIVIL) NO. 932 OF 2013

TRANSFERRED PETITION (CIVIL) NO. 1796 OF 2013

CONTEMPT PETITION (CIVIL) NO. 144 OF 2014
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012

TRANSFERRED PETITION (CIVIL) NO. 313 OF 2014

Signature Not Verified TRANSFERRED PETITION (CIVIL) NO. 312 OF 2014
Digitally signed by
CHETAN KUMAR

SPECIAL LEAVE PETITION (CRIMINAL) NO. 2524 OF 2014
Date: 2018.09.26
13:36:51 IST
Reason:

WRIT PETITION (CIVIL) NO. 37 OF 2015

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 1 of 567
WRIT PETITION (CIVIL) NO. 220 OF 2015

CONTEMPT PETITION (CIVIL) NO. 674 OF 2015
IN
WRIT PETITION (CIVIL) NO. 829 OF 2013

TRANSFERRED PETITION (CIVIL) NO. 921 OF 2015

CONTEMPT PETITION (CIVIL) NO. 470 OF 2015
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012

WRIT PETITION (CIVIL) NO. 231 OF 2016

CONTEMPT PETITION (CIVIL) NO. 444 OF 2016
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012

CONTEMPT PETITION (CIVIL) NO. 608 OF 2016
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012

WRIT PETITION (CIVIL) NO. 797 OF 2016

CONTEMPT PETITION (CIVIL) NO. 844 OF 2017
IN
WRIT PETITION (CIVIL) NO. 494 OF 2012

WRIT PETITION (CIVIL) NO. 342 OF 2017

WRIT PETITION (CIVIL) NO. 372 OF 2017

WRIT PETITION (CIVIL) NO. 841 OF 2017

WRIT PETITION (CIVIL) NO. 1058 OF 2017

WRIT PETITION (CIVIL) NO. 966 OF 2017

WRIT PETITION (CIVIL) NO. 1014 OF 2017

WRIT PETITION (CIVIL) NO. 1002 OF 2017

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 2 of 567
WRIT PETITION (CIVIL) NO. 1056 OF 2017

AND

CONTEMPT PETITION (CIVIL) NO. 34 OF 2018
IN
WRIT PETITION (CIVIL) NO. 1014 OF 2017

JUDGMENT

A.K. SIKRI, J.

(For Chief Justice, himself and A.M. Khanwilkar, J.)

Introduction and Preliminaries:

It is better to be unique than the best. Because,
being the best makes you the number one, but
being unique makes you the only one.

2) ‘Unique makes you the only one’ is the central message of

Aadhaar, which is on the altar facing constitutional challenge in

these petitions. ‘Aadhaar’ which means, in English, ‘foundation’

or ‘base’, has become the most talked about expression in recent

years, not only in India but in many other countries and

international bodies. A word from Hindi dictionary has assumed

secondary significance. Today, mention of the word ‘Aadhaar’

would not lead a listener to the dictionary meaning of this word.

Instead, every person on the very mentioning of this word

‘Aadhaar’ would associate it with the card that is issued to a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 3 of 567

person from where he/she can be identified. It is described as an

‘Unique Identity’ and the authority which enrols a person and at

whose behest the Aadhaar Card is issued is known as Unique

Identification Authority of India (hereinafter referred to as ‘UIDAI’

or ‘Authority’). It is described as unique for various reasons.

UIDAI claims that not only it is a foolproof method of identifying a

person, it is also an instrument whereby a person can enter into

any transaction without needing any other document in support.

It has become a symbol of digital economy and has enabled

multiple avenues for a common man. Aadhaar scheme, which

was conceptualised in the year 2006 and launched in the year

2009 with the creation of UIDAI, has secured the enrolment of

almost 1.1 billion people in this country. Its use is spreading like

wildfire, which is the result of robust and aggressive campaigning

done by the Government, governmental agencies and other such

bodies. In this way it has virtually become a household symbol.

The Government boasts of multiple benefits of Aadhaar.

3) At the same time, the very scheme of Aadhaar and the

architecture built thereupon has received scathing criticism from a

section of the society. According to them, Aadhaar is a serious

invasion into the right to privacy of persons and it has the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 4 of 567

tendency to lead to a surveillance state where each individual can

be kept under surveillance by creating his/her life profile and

movement as well on his/her use of Aadhaar. There has been no

other subject matter in recent past which has evoked the kind of

intensive and heated debate wherein both sides, for and against,

argue so passionately in support of their respective conviction.

The petitioners in these petitions belong to the latter category

who apprehend the totalitarian state if Aadhaar project is allowed

to continue. They are demanding scrapping and demolition of the

entire Aadhaar structure which, according to them, is anathema

to the democratic principles and rule of law, which is the bedrock

of the Indian Constitution. The petitioners have challenged the

Aadhaar project which took off by way of administrative action in

the year 2009. Even after Aadhaar got a shield of statutory cover,

challenge persists as the very enactment known as
Aadhaar

(Targeted Delivery of Financial and Other Subsidies, Benefits and

Services) Act, 2016
(hereinafter referred to as the ‘Aadhaar Act’)

is challenged as constitutionally impermissible. The wide range

of issues involved in this case is evident from the fact that it took

almost four months for the parties to finish their arguments in

these cases, and the Court witnessed highly skilled, suave,

brilliant and intellectual advocacy, with the traces of passions as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 5 of 567

well.

4) The issue has generated heated public debate as well. Even

outside the Court, there are groups advocating in favour of the

Aadhaar scheme and those who are stoutly opposing the same.

Interestingly, it is not only the commoners who belong to either of

the two groups but intelligentsia is also equally divided. There

have been number of articles, interviews for discourses in favour

of or against Aadhaar. Those in favour see Aadhaar project as

ushering the nation into a regime of good governance, advancing

socio-economic rights, economic prosperity etc. and in the

process they claim that it may make the nation a world leader.

Mr. K.K. Venugopal, learned Attorney General for India, referred

to the commendations by certain international bodies, including

the World Bank. We clarify that we have not been influenced by

such views expressed either in favour or against Aadhaar. Those

opposing Aadhaar are apprehensive that it may excessively

intrude into the privacy of citizenry and has the tendency to

create a totalitarian state, which would impinge upon the

democratic and constitutional values. Some such opinions of

various persons/bodies were referred to during the arguments.

Notwithstanding the passions, emotions, annoyance, despair,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 6 of 567

ecstasy, euphoria, coupled with rhetoric, exhibited by both sides

in equal measure during the arguments, this Court while giving its

judgment on the issues involved is required to have a posture of

calmness coupled with objective examination of the issues on the

touchstone of the constitutional provisions.

5) Initiative in spearheading the attack on the Aadhaar structure was

taken by the petitioners, namely, Justice K.S. Puttaswamy (Retd.)

and Mr. Pravesh Khanna, by filing Writ Petition (Civil) No. 494 of

2012. At that time, Aadhaar scheme was not under legislative

umbrella. 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. Few others joined

the race by filing connected petitions. 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. Here again, some

more writ petitions have been filed with the same objective. All

these writ petitions were clubbed together. There are number of

interventions as well by various individuals, groups, NGOs, etc.,

some opposing the petitions and some supporting the Aadhaar

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 7 of 567

scheme.

6) Before we go into the premise on which the attack is laid on the

constitutional validity of the Aadhaar project and the Aadhaar Act,

it would be apposite to take note of the events in chronological

order that shaped the formulation, take off and implementation of

the Aadhaar scheme.

7) On March 03, 2006, approval was given by the Department of

Information Technology, Ministry of Communications and

Information Technology, Government of India for the project titled

‘Unique Identification for BPL Families’ to be implemented by the

National Informatics Centre (NIC) for over a period of twelve

months. As a result, a Processes Committee was set up on July

03, 2006 to suggest the process for updation, modification,

addition and deletion of data and fields from the core database to

be created under the Unique Identification for BPL Families

project. This Committee, on November 26, 2006, prepared a

paper known as ‘Strategic Vision Unique Identification of

Residents’. Based thereupon, the Empowered Group of

Ministers (EGoM) was set up on December 04, 2006, to collate

the National Population Register under the
Citizenship Act, 1955

and the Unique Identification Number project of the Department

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 8 of 567

of Information Technology. The EGoM was also empowered to

look into the methodology and specific milestones for early and

effective completion of projects and to take a final view on these

projects. The EGoM was composed of the then Ministers of

External Affairs, Home Affairs, Law, Panchayati Raj and

Communications and Information Technology and the then

Deputy Chairman, Planning Commission.

8) Various meetings on the Unique Identification (hereinafter

referred to as ‘UID’) project were held from time to time. In the

fourth meeting held on December 22, 2006, various aspects of

proposed data elements and their formats were discussed.

Thereafter, in its fifth meeting held on April 27, 2007, it was

decided that the evolution of UID database would be in three

stages in principle. The Committee further decided that linkage

with major partner databases such as Household Survey of RD

and the individual State Public Distribution System (PDS)

databases should be taken up in a phased manner. On June 11,

2007, at the final stage of the project, a presentation on the UID

project was made to the then Prime Minister by the Cabinet

Secretary. The sixth meeting of the UID project was held on June

15, 2007. The Committee, inter alia, took the following decisions:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 9 of 567

(i) The numbering format of 11 digits was approved.

(ii) The need for UID authority to be created by an executive

order under the aegis of the Planning Commission was

appreciated in order to ensure pan-departmental and neutral

identity for the authority.

(iii) The proposal for creation of Central and State UIDs was

approved.

(iv) Department of Information Technology (DIT) was directed

to work out modalities for linkage with Election Commission and

initiate discussions with MoRD and PDS for linkage.

(v) In principle, approval of proposed sequence for phasing

plan was granted.

9) In the seventh meeting held on August 30, 2007, the proposed

administrative framework and structure of UID authority and

manpower requirement, including financial implications, was

discussed. It was decided that a detailed proposal based on the

resource model be presented to the Committee for its ‘in

principle’ approval. At this stage, EGoM convened its first

meeting on November 27, 2007. At this meeting, a consensus

emerged on the following points:

(i) There is a clear need for creating an identity related

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 10 of 567

resident database, regardless of whether the database is created

on a de novo collection of data or is based on an already existing

data (such as the Election Commission’s Voter List).

(ii) Additionally, there is a critical need to create an institutional

mechanism that would ‘own’ the database and be responsible for

its maintenance and updating.

(iii) The next meeting is to consider topics relating to collating

the National Population Register (NPR) and UID schemes,

including methodology, effective implementation techniques,

identification of the institutional mechanism stated above, and the

time schedule for putting the scheme into operation.

A series of meetings took place thereafter to work out the

modalities of the programme. Certain issues were raised therein

and to address those issues, a Committee of Secretaries was

formed. The said Committee gave its recommendations which

were discussed by EGoM. After approving the Aadhaar Scheme

in principle, it instructed the Cabinet Secretary to convene a

meeting to finalise the detailed organisational structure of the

UID.

10) After considering the recommendation of the Cabinet Secretary,

Notification No. A-43011/02/2009-Admn.I was issued on January

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 11 of 567

28, 2009 by the Government of India which constituted and

notified the UIDAI as an attached office under the aegis of the

Planning Commission. Consequent to the constitution of UIDAI,

allocation of Rs.147.31 crores for Phase I of Aadhaar enrolments

was approved by the Finance Minister on the recommendation of

the Standing Committee on Finance. Demo-Official letter dated

February 25, 2009, was sent by the Secretary, Planning

Commission to all Chief Secretaries of 35 States/Union Territories

apprising them of their roles and responsibilities of the

States/Union Territories in implementation of UIDAI, such as

appointment of the State/UT UID Commissioners, logistics

support and coordination with various departments and State

units.

As they say, rest is history, which we recapitulate in brief

hereinafter.

11) A core group was set up to advice and further the work related to

UIDAI. Budgets were allocated to UIDAI to enable it to undertake

its task. Staff was also allocated to it. Meetings of the core group

took place from time to time. The core group, inter alia, decided

that it was better to start with the electoral roll database of 2009

for undertaking the UIDAI project. The status of digitisation of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 12 of 567

PDS records, state-wise, was sought to be sent from the

Department of Food and Public Distribution to the Standing

Commission/UID. This and other steps taken in this direction

culminated in issuance of Notification dated July 02, 2009

whereby Mr. Nandan Nilekani was appointed as the Chairman of

UIDAI for an initial tenure of five years in the rank and status of a

Cabinet Minister. He assumed charge on July 24, 2009.

Thereafter, the Prime Minister’s Council of UIDAI was constituted

on July 30, 2009 which held its first meeting on August 12, 2009

where the Chairman of UIDAI made detailed representation on

the broad strategy and approach of the proposed UID project.

One of the proposals was to provide a legislative framework for

UID at the earliest so that it could have the legal sanction to

perform its function. Some other Committees like the Biometrics

Standard Committee, Demographic Data Standards and

Verification Procedure Committee were set up as a support

system to the project, which submitted their respective reports in

December 2009. Even a Cabinet Committee on UID was

constituted vide orders dated October 22, 2009 which was

headed by the Prime Minister with the aim to cover all issues

relating to UIDAI, including its organisation, policies,

programmes, schemes, funding and methodology to be adopted

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 13 of 567

for achieving its objectives.

12) The matter was addressed in the Seventeenth Finance

Commission Report also which was tabled in the Parliament on

February 25, 2010. In this report, the Finance Commission

suggested targeting of subsidies through UIDAI. By April 2010,

UIDAI came out with its Strategy Overview. This Overview

describes the features, benefits, revenue model and timelines of

the UIDAI project. Furthermore, it outlined the goal of the UID to

serve as a universal proof of identity, allowing residents to prove

their identities anywhere in the country. The project would give

the Government a clear view of India’s population, enabling it to

target and deliver services effectively, achieve greater returns on

social investments and monitor money and resource flows across

the country. It was felt that crucial to the achievement of this goal

is the active participation of the central, state and local

Governments as well as public and private sector entities. Only

with their support will the project be able to realise a larger vision

of inclusion and development in India.

13) A Cabinet Note bearing No. 4(4)/57/2010/CC-UIDAI for the

Cabinet Committee on UIDAI was submitted on May 12, 2010.

The Note outlined a brief background of UIDAI, proposed an

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 14 of 567

approach for collection of demographic and biometric attributes of

residents for the UID project and sought approval of the Cabinet

Committee for adoption of the aforesaid approach and suggested

that the same standards and processes be adhered to by the

Registrar General of India for the NPR exercise and all other

Registrars in the UID system. Rationale for inclusion of iris

biometrics was also submitted with the aforesaid Cabinet Note to

explain the need for capturing iris scans at the time of capturing

biometric details.

14) By September 2010 enrolment process of Aadhaar began with

the nationwide launch of the Aadhaar project. In December 2010,

UIDAI came out with a report on enrolment process known as

‘UID Enrolment Proof-of-Concept Report’ studying enrolment

proof-of-concept in three rural areas of Karnataka, Bihar and

Andhra Pradesh published by the UIDAI. According to this report,

‘the biometric matching analysis of 40,000 people showed that

the accuracy levels achieved by both iris and ten fingerprints

were more than an order of magnitude better compared to using

either of the two individually. The multi-modal enrolment was

adequate to carry out de-duplication on a much larger scale, with

reasonable expectations of extending it to all residents of India’.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 15 of 567

15) Going by the recommendation of the Chairman of UIDAI for

providing legislative framework to UIDAI, a Bill was introduced in

the Rajya Sabha on December 03, 2010 known as ‘National

Identification Authority of India Bill, 2010’.

16) Various other steps were taken to smoothen the process of

enrolment. There were studies from time to time on the

effectiveness of the enrolment process. Notifications/orders were

also issued by the Reserve Bank of India stating that an Aadhaar

letter would be recognised by Banks to open bank accounts for a

resident. Similar Orders/Notifications were issued by other

authorities as well. On the first anniversary of Aadhaar launch,

which fell on September 29, 2011, announcement was made that

10 crores enrolments and generation of more than 3.75 crores of

Aadhaar had taken place. Some of the reports submitted in due

course of time, which are relevant for our purposes, are taken

note of at this stage:

(i) Report of the Task Force on an Aadhaar-Enabled Unified

Payment Infrastructure for the direct transfer of subsidies on

Kerosene, LPG and Fertilizer.

(ii) In March 2012, Fingerprint Authentication Report was

submitted to UIDAI. This Report showcased the high accuracy

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 16 of 567

rates of using fingerprints to authenticate identities. The study

conducted in the rural setting representing typical demography of

the population established that it is technically possible to use

fingerprint to authenticate a resident in 98.13% of the population.

The accuracy of 96.5% can be achieved using one best finger

and 99.3% can be achieved using two fingers. Further

improvement is possible if the device specifications are tightened

to include only the best devices and certain mechanical guide is

used to aid proper placement of the finger. It was also

demonstrated through benchmarking that the authentication

infrastructure is able to sustain one million authentications per

hour.

(iii) Fifty Third Report of the Standing Committee on Finance on

the ‘Demands for Grants (2012-13)’ of the Ministry of Planning

was presented to the Lok Sabha and Rajya Sabha on April 24,

2012. This Report summarises the objectives and financial

implications of the UID scheme being implemented under the

aegis of the Planning Commission.

(iv) Iris Authentication Accuracy Report was submitted to UIDAI

on September 12, 2012. This Report based on an empirical

study of 5833 residents demonstrated iris authentication to be

viable in Indian context. With current level of device readiness for

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 17 of 567

iris capture, it is capable of providing coverage for 99.67% of

population with authentication accuracy of above 99.5%.

Suggestions made in this document for the vendors, once

implemented, will improve the rates further. The overall systems

– network and software – have shown to meet desired

requirements in real life condition. Finally, six different devices

with variety of form and function are available to provide

competitive vendor eco-system.

(v) Background Note on Introduction to Cash Transfers was

prepared by the National Committee on Direct Cash Transfers in

its first meeting on November 26, 2012. This Report outlines the

advantages of cash transfers in the Indian context stating that a

unique ID for all is a prerequisite for this purpose.

17) At this juncture, Writ Petition (Civil) No. 494 of 2012 was filed in

which show-cause notice dated November 30, 2012 was issued

by this Court. As pointed out above, this writ petition assailed

Aadhaar scheme primarily on the ground that it violates right to

privacy which is a facet of fundamental rights enshrined in
Article
of the Constitution.

18) Counter affidavit thereto was filed by the Union of India as well as

UIDAI. The stand taken by the respondents, inter alia, was that

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 18 of 567

right to privacy is not a fundamental right, which was so held by

the eight Judge Bench judgment in
M.P. Sharma and 4 Others v.

Satish Chandra Distt
. Magistrate, Delhi and 4 Others 1. This is

notwithstanding the fact that thereafter in many judgments

rendered by this Court, right to privacy was accepted as a facet of

Article 21.
Contention of the respondents, however, was that

those judgments were contrary to the dicta
laid down in
M.P.

Sharma and were, therefore, per in curium. The matter on this

aspect was heard by a three Judge Bench and after hearing the

parties, the Bench deemed it appropriate to make the reference

to the Constitution Bench. A five Judge Bench was constituted,

which after considering the matter, referred the same to a nine

Judge Bench to resolve the controversy in an authoritative

manner. The nine Judge Bench judgment has given an

unanimous answer to the Reference with conclusive,

unambiguous and emphatic determination that right to privacy is

a part of fundamental rights which can be traced to
Articles 14
, 19

and
of the Constitution of India.

19) We may also record at this stage that in this petition certain

interim orders were passed from time to time. We may give the

gist of some of the relevant orders:

1 1954 SCR 1077

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 19 of 567

(a) Order dated September 23, 2013 (two Judge Bench)

“All the matters require to be heard finally. List all matters
for final hearing after the Constitution Bench is over.

In the meanwhile, no person should suffer for not getting
the Aadhaar card in spite of the fact that some authority
had issued a circular making it mandatory and when any
person applies to get the Aadhaar card voluntarily, it may
be checked whether that person is entitled for it under the
law and it should not be given to any illegal immigrant.”

(b) Order dated November 26, 2013 (two Judge Bench)

“After hearing the matter at length, we are of the view that
all the States and Union Territories have to be impleaded
as respondents to give effective directions. In view thereof,
notice be issued to all the States and Union Territories
through standing counsel.

xx xx xx

Interim order to continue, in the meantime.”

(c) Order dated March 16, 2015 (three Judge Bench)

“In the meanwhile, it is brought to our notice that in certain
quarters, Aadhaar identification is being insisted upon by
the various authorities, we do not propose to go into the
specific instances.

Since Union of India is represented by learned Solicitor
General and all the States are represented through their
respective counsel, we expect that both the Union of India
and States and all their functionaries should adhere to the
order passed by this Court on 23rd September, 2013.”

(d) Order dated August 11, 2015 (three Judge Bench)

“Having considered the matter, we are of the view that the
balance of interest would be best served, till the matter is
finally decided by a larger Bench, if the Union of India or
the UIDAI proceed in the following manner:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 20 of 567

1. The Union of India shall give wide publicity in the
electronic and print media including radio and television
networks that it is not mandatory for a citizen to obtain an
Aadhaar card.

2. The production of an Aadhaar card will not be condition
for obtaining any benefits otherwise due to a citizen.

3. The Unique Identification Number or the Aadhaar card
will not be used by the respondents for any purpose other
than the PDS Scheme and in particular for the purpose of
distribution of food grains, etc. and cooking fuel, such as
kerosene. The Aadhaar card may also be used for the
purpose of LPG Distribution Scheme.

4. The information about an individual obtained by the
Unique Identification Authority of India while issuing an
Aadhaar card shall not be used for any other purpose,
save as above, except as may be directed by a Court for
the purpose of criminal investigation.”

(d) Order dated October 15, 2015 (Constitution Bench)

“3. After hearing the learned Attorney General for India and
other learned senior counsels, we are of the view that in
paragraph 3 of the order dated 11.08.2015, if we add, apart
from the other two Schemes, namely, P.D.S. Scheme and
L.P.G. Distribution Scheme, the Schemes like The
Mahatma Gandhi National Social Assistance Programme
(Old Age Pensions, Widow Pensions, Disability Pensions),
Prime Minister’s Jan Dhan Yojana (PMJDY) and
Employees’ Provident Fund Organisation (EPFO) for the
present, it would not dilute earlier order passed by this
Court. Therefore, we now include the aforesaid Schemes
apart from the other two Schemes that this Court has
permitted in its earlier order dated 11.08.2015.

4. We impress upon the Union of India that it shall strictly
follow all the earlier orders passed by this Court
commencing from 23.09.2013.

5. We will also make it clear that the Aadhaar card scheme
is purely voluntary and it cannot be made mandatory till the
matter is finally decided by this Court one way or the other.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 21 of 567

(e) Order dated September 14, 2016 in WP (C) No. 686/2016

“Having regard to the facts and circumstances of the case,
the material evidence available on record and the
submissions made by learned senior counsel, we stay the
operation and implementation of letters dated 14.07.2006
(i.e. Annexure P-5, P-6, P-7) for Pre-Matric Scholarship
Scheme, Post-Matric Scholarship Scheme and Merit-cum-
Means Scholarship Scheme to the extent they have made
submission of Aadhaar mandatory and direct the Ministry of
Electronics and Information Technology, Government of
India, i.e. respondent No.2, to remove Aadhaar number as
a mandatory condition for student registration form at the
National Scholarship Portal of Ministry of Electronics and
Information Technology, Government of India at the
website...”

20) It is also relevant to point out that against an order passed by the

High Court of Bombay at Panaji, in some criminal proceedings,

wherein the Authority was directed to pass on biometric

information on a person, UIDAI had filed Special Leave Petition

(Criminal) No. 2524 of 2014 challenging the said order with the

submission that such a direction for giving biometric information

was contrary to the provisions of the Aadhaar Act and the

Authority was not supposed to give such an information, which

was confidential. In the said special leave petition, order dated

March 24, 2014 was passed staying the operation of the orders of

the Bombay High Court. This order reads as under:

“Issue notice.

In addition to normal mode of service, dasti service, is
permitted.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 22 of 567

Operation of the impugned order shall remain stayed.

In the meanwhile, the present petitioner is restrained from
transferring any biometric information of any person who
has been allotted the Aadhaar number to any other agency
without his consent in writing.

More so, no person shall be deprived of any service for
want of Aadhaar number in case he/she is otherwise
eligible/entitled. All the authorities are directed to modify
their forms/circulars/likes so as to not compulsorily require
the Aadhaar number in order to meet the requirement of
the interim order passed by this Court forthwith.

Tag and list the matter with main matter i.e. WP (C) No.
494 of 2012.”

21) Likewise, in Writ Petition (Civil) No. 1002 of 2017 titled
Dr. Kalyan

Menon Sen v. Union of India and Others
, where constitutional

validity of linking bank accounts and mobile phones with Aadhaar

linkage was challenged, interim order was passed on November

03, 2017 extending the last date of linking to December 31, 2017

and February 06, 2018 respectively. This order was extended

thereafter and continues to operate.

22) We would also like to refer to the order dated September 14,

2011 passed in People’s Union for Civil Liberties (PDS Matter) v.

Union of India & Ors.2, wherein various directions were given to

ensure effective implementation of the PDS Scheme and in the

process to also undertake the exercise of eliminating the task and

2 (2011) 14 SCC 331

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 23 of 567

ghost ration cards. In the same manner, vide order dated March

16, 2012 it was noted that the Government had set up a task

force under the Chairmanship of Mr. Nandan Nilekani to

recommend, amongst others, an IT strategy for the PDS. Mr.

Nilekani was requested to suggest ways and means by which

computerization process of the PDS can be expedited.

Computerisation of PDS system was directed to be prepared and

in this hue the process of computerisation with Aadhaar

registration was also suggested.

In the same very case above, which also pertained to

providing night shelters to homeless destitute persons, some

orders were passed on February 10, 2010 3 as well as on

September 14, 20114.

23) Again, in the case of
State of Kerala & Ors. v. President, Parent

Teachers Association SNVUP School and Ors.
5, where the Court

was concerned with the problem of fake or bogus admissions, it

was felt that instead of involving the Police in schools to prevent

fake admissions, more appropriate method of verification would

be Unique Identification (UID) card as means of verification.

Architecture of the Aadhaar Project and the Aadhaar Act:
3 (2010) 5 SC 318
4 (2010) 13 SCC 45
5 (2013) 2 SCC 705

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 24 of 567

24) Before adverting to the discussion on various issues that have

been raised in these petitions, it would be apposite to first

understand the structure of the Aadhaar Act and how it operates,

having regard to various provisions contained therein. UIDAI was

established in the year 2009 by an administrative order i.e. by

resolution of the Govt. of India, Planning Commission, vide

notification dated January 28, 2009. The object of the

establishment of the said Authority was primarily to lay down

policies to implement the Unique Identification Scheme (for short

the ‘UIS’) of the Government, by which residents of India were to

be provided unique identity number. The aim was to serve this as

proof of identity, which is unique in nature, as each individual will

have only one identity with no chance of duplication. Another

objective was that this number could be used for identification of

beneficiaries for transfer of benefits, subsidies, services and other

purposes. This was the primary reason, viz. to ensure correct

identification of targeted beneficiaries for delivery of various

subsidies, benefits, services, grants, wages and other social

benefits schemes which are funded from the Consolidated Fund

of India. It was felt that the identification of real and genuine

beneficiaries had become a challenge for the Government. In the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 25 of 567

absence of a credible system to authenticate identity of

beneficiaries, it was becoming difficult to ensure that the

subsidies, benefits and services reach to intended beneficiaries.

As per the Government, failure to establish identity was proving

to be major hindrance for the successful implementation of the

welfare programmes and it was hitting hard the marginalised

section of the society and, in particular, women, children, senior

citizens, persons with disabilities, migrant unskilled and organised

workers, and nomadic tribes. After the establishment of the

Authority, vide the aforesaid notification, it started enrolling the

residents of this country under the UIS. These residents also

started using Aadhaar number allotted to them. It was found that

over a period of time, the use of Aadhaar number had increased

manifold. This necessitated ensuring security of the information

contained in Aadhaar number as well as the information that

generated as a result of the use of Aadhaar numbers. It was,

thus, felt desirable to back the system with a Parliamentary

enactment.

25) With this intention, the Aadhaar Bill was introduced with the

following Introduction:

“The Unique Identification Authority of India was
established by a resolution of the Government of India in
2009. It was meant primarily to lay down policies and to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 26 of 567

implement the Unique Identification Scheme, by which
residents of India were to be provided unique identity
number. This number wold serve as proof of identity and
could be used for identification of beneficiaries for transfer
of benefits, subsidies, services and other purposes.

Later on, it was felt that the process of enrollment,
authentication, security, confidentiality and use of Aadhaar
related information be made statutory so as to facilitate the
use of Aadhaar number for delivery of various benefits,
subsidies and services, the expenditures of which were
incurred from or receipts therefrom formed part of the
Consolidated Fund of India.

The Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016 inter alia,
provides for establishment of Unique Identification Authority
of India, issuance of Aadhaar number to individuals,
maintenance and updating of information in the Central
Identities Data Repository, issues pertaining to security,
privacy and confidentiality of information as well as
offences and penalties for contravention of relevant
statutory provisions.”

26) After mentioning the reasons recorded above, Statement of

Objects and Reasons for introducing the Bill also highlight the

salient features thereof in the following manner:

“5. The Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016, inter alia,
seeks to provide for—

(a) issue of Aadhaar numbers to individuals on providing
his demographic and biometric information to the Unique
Identification Authority of India;

(b) requiring Aadhaar numbers for identifying an individual
for delivery of benefits, subsidies, and services the
expenditure is incurred from or the receipt therefrom forms
part of the Consolidated Fund of India;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 27 of 567

(c) authentication of the Aadhaar number of an Aadhaar
number holder in relation to his demographic and biometric
information;

(d) establishment of the Unique Identification Authority of
India consisting of a Chairperson, two Members and a
Member-Secretary to perform functions in pursuance of the
objectives above;

(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in such
manner as may be specified by regulations;

(f) measures pertaining to security, privacy and
confidentiality of information in possession or control of the
Authority including information stored in the Central
Identities Data Repository; and

(g) offences and penalties for contravention of relevant
statutory provisions.”

27) The Bill having been passed by the Legislature, received the

assent of the President on March 25, 2016 and, thus, became Act

(18 of 2016). Preamble to this Act again emphasises the aim and

objective which this Act seeks to achieve. It reads:

“
An Act
to provide for, as a good governance, efficient,
transparent, and targeted delivery of subsidies, benefits
and services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such
individuals and for matters connected therewith or
incidental thereto”

28)
Section 2
of the Act provides certain definitions. Some of the

definitions can be noted at this stage itself, while other relevant

definitions would be mentioned at the appropriate stage.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 28 of 567

“(a) “Aadhaar number” means an identification number
issued to an individual under sub-section (3) of
Section 3
;

(b) “Aadhaar number holder” means an individual who has
been issued an Aadhaar number under this Act;

(c) “authentication” means the process by which the
Aadhaar number along with demographic information or
biometric information of an individual is submitted to the
Central Identities Data Repository for its verification and
such Repository verifies the correctness, or the lack
thereof, on the basis of information available with it;

(d) “authentication record” means the record of the time of
authentication and identity of the requesting entity and the
response provided by the Authority thereto;

xx xx xx

(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a
group of individuals and includes such other benefits as
may be notified by the Central Government;

(g) “biometric information” means photograph, finger print,
Iris scan, or such other biological attributes of an individual
as may be specified by regulations;

(h) “Central Identities Data Repository” means a
centralised database in one or more locations containing
all Aadhaar numbers issued to Aadhaar number holders
along with the corresponding demographic information and
biometric information of such individuals and other
information related thereto;

xx xx xx

(j) “core biometric information” means finger print, Iris
scan, or such other biological attribute of an individual as
may be specified by regulations;

(k) “demographic information” includes information relating
to the name, date of birth, address and other relevant
information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number,
but shall not include race, religion, caste, tribe, ethnicity,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 29 of 567

language, records of entitlement, income or medical
history;

(l) “enrolling agency” means an agency appointed by the
Authority or a Registrar, as the case may be, for collecting
demographic and biometric information of individuals under
this Act;

(m) “enrollment” means the process, as may be specified
by regulations, to collect demographic and biometric
information from individuals by the enrolling agencies for
the purpose of issuing Aadhaar numbers to such
individuals under this Act;

(n) “identity information” in respect of an individual,
includes his Aadhaar number, his biometric information and
his demographic information;

xx xx xx

(r) “records of entitlement” means records of benefits,
subsidies or services provided to, or availed by, any
individual under any programme;

xx xx xx

(u) “requesting entity” means an agency or person that
submits the Aadhaar number, and demographic information
or biometric information, of an individual to the Central
Identities Data Repository for authentication;

(v) “resident” means an individual who has resided in India
for a period or periods amounting in all to one hundred and
eighty-two days or more in the twelve months immediately
preceding the date of application for enrolment;

(w) “service” means any provision, facility, utility or any
other assistance provided in any form to an individual or a
group of individuals and includes such other services as
may be notified by the Central Government;

(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an
individual or a group of individuals and includes such other
subsidies as may be notified by the Central Government.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 30 of 567

29)
Chapter II of the Act
deals with enrolment.
Section 3
in this

Chapter entitles every resident to obtain the Aadhaar number by

submitting his demographic information and biometric

information. As noted above, demographic information includes

information relating to the name, date of birth, address and ‘other

relevant information of an individual, as may be specified by

regulations for the purpose of issuing an Aadhaar number’.

Photograph, fingerprint, iris scan, ‘or such other biological

attribute of an individual as may be specified by regulations’ are

treated as biometric information. Sub-section (2) of
Section 3

stipulates that the enrolling agency shall, at the time of enrolment,

inform the individual undergoing enrolment of the following details

in such manner as may be specified by regulations, namely:

(a) the manner in which the information shall be used;

(b) the nature of recipients with whom the information is

intended to be shared during authentication; and

(c) the existence of a right to access information, the procedure

for making requests for such access, and details of the person or

department in-charge to whom such requests can be made.

30)
Section 4
, inter alia, provides that Aadhaar number issued to an

individual shall not be reassigned to any individual. In this sense,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 31 of 567

it makes an Aadhaar number given to a particular individual

‘unique’.
Section 5
delineates special measures for issuance of

Aadhaar number to certain categories of persons and reads as

under:

“5. Special measures for issuance of Aadhaar number
to certain category of persons.— The Authority shall take
special measures to issue Aadhaar number to women,
children, senior citizens, persons with disability, unskilled
and unorganised workers, nomadic tribes or to such other
persons who do not have any permanent dwelling house
and such other categories of individuals as may be
specified by regulations.”

31)
Section 6
enables the Authority to update demographic and

biometric information of the Aadhaar number holders from time to

time.

32) Chapter III deals with ‘authentication’, which has generated the

maximum debate in these proceedings.
Section 7
falling under

this Chapter mandates that proof of Aadhaar number would be

necessary for receipt of certain subsidies, benefits and services

etc. meaning thereby for availing such subsidies, benefits and

services, it would be necessary for the intended beneficiary to

possess Aadhaar number. In case of an individual to whom no

Aadhaar number has been assigned, he/she would be required to

show that application for enrolment has been given. Where the

Aadhaar number is not assigned, proviso to
Section 7
lays down

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 32 of 567

that the individual shall be offered alternate and viable means of

identification for delivery of subsidy, benefit or service.
Section 8

deals with authentication of Aadhaar number and provides that on

submission of request by any requesting entity, the Authority shall

perform authentication of Aadhaar number. This authentication is

in relation to biometric information or demographic information of

an Aadhaar number holder. Before collecting identity information

for the purpose of authentication, the requesting entity is to obtain

consent of an individual and also to ensure that the identity

information of that individual is only used for submission to the

Central Identities Data Repository (CIDR) for authentication.

Sections 7
and
read as under:

“7. Proof of Aadhaar number necessary for receipt of
certain subsidies, benefits and services, etc.— The
Central Government or, as the case may be, the State
Government may, for the purpose of establishing identity of
an individual as a condition for receipt of a subsidy, benefit
or service for which the expenditure is incurred from, or the
receipt therefrom forms part of, the Consolidated Fund of
India, require that such individual undergo authentication,
or furnish proof of possession of Aadhaar number or in the
case of an individual to whom no Aadhaar number has
been assigned, such individual makes an application for
enrolment:

Provided that if an Aadhaar number is not assigned
to an individual, the individual shall be offered alternate and
viable means of identification for delivery of the subsidy,
benefit or service.

8. Authentication of Aadhaar number.— (1) The
Authority shall perform authentication of the Aadhaar
number of an Aadhaar number holder submitted by any

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 33 of 567

requesting entity, in relation to his biometric information or
demographic information, subject to such conditions and
on payment of such fees and in such manner as may be
specified by regulations.

(2) A requesting entity shall—

(a) unless otherwise provided in this Act, obtain the
consent of an individual before collecting his identity
information for the purposes of authentication in such
manner as may be specified by regulations; and

(b) ensure that the identity information of an individual is
only used for submission to the Central Identities Data
Repository for authentication.

(3) A requesting entity shall inform, in such manner as may
be specified by regulations, the individual submitting his
identity information for authentication, the following details
with respect to authentication, namely—

(a) the nature of information that may be shared upon
authentication;

(b) the uses to which the information received during
authentication may be put by the requesting entity; and

(c) alternatives to submission of identity information to the
requesting entity.

(4) The Authority shall respond to an authentication query
with a positive, negative or any other appropriate response
sharing such identity information excluding any core
biometric information.”

33) Under
Section 10
, the Authority is given power to engage one or

more entities to establish and maintain the CIDR and to perform

any other functions as may be specified by regulations.

34) Chapter IV deals with the Establishment of the Authority. As per

Section 11
, the Central Government, by notification, shall

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 34 of 567

establish an Authority to be known as the Unique Identification

Authority of India. Notification dated July 12, 2016 was issued by

the Central Government establishing the Authority. Other

provisions in this Chapter deal with the composition of the

Authority, qualifications for appointment of the Chairperson and

Members of Authority; term of their office and their removal; and

restrictions on their employment after cessation of office. It also

provides for the functions of Chairperson as well as office of the

Chief Executive Officer (CEO) and his functions and the

meetings of the Authority etc. Powers and functions of the

Authority are stipulated in
Section 23
.

35) Chapter V talks of grants to the Authority by the Central

Government as well as accounts and audit and annual report of

the Authority.

36) Chapter VI deals with the important aspects pertaining to

‘protection of information’. Section 28 of the Aadhaar Act puts an

obligation on the Authority to ensure the security of identity

information and authentication records of individuals. Likewise,

Section 29
imposes certain restrictions on sharing information i.e.

core biometric information collected or created under the Act or

the identity information. The biometric information collected and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 35 of 567

stored in electronic form, in accordance with this Act and

regulations made thereunder, is treated as ‘electronic record’ and

‘sensitive personal data or information’ by virtue of
Section 30
of

the Act. As these are very material and significant provisions of

the Act, the same are reproduced verbatim in their entirety:

“28. Security and confidentiality of information.— (1)
The Authority shall ensure the security of identity
information and authentication records of individuals.

(2) Subject to the provisions of this Act, the Authority shall
ensure confidentiality of identity information and
authentication records of individuals.

(3) The Authority shall take all necessary measures to
ensure that the information in the possession or control of
the Authority, including information stored in the Central
Identities Data Repository, is secured and protected
against access, use or disclosure not permitted under this
Act or regulations made thereunder, and against accidental
or intentional destruction, loss or damage.

(4) Without prejudice to sub-sections (1) and (2), the
Authority shall—

(a) adopt and implement appropriate technical and
organisational security measures;

(b) ensure that the agencies, consultants, advisors or
other persons appointed or engaged for performing any
function of the Authority under this Act, have in place
appropriate technical and organisational security measures
for the information; and

(c) ensure that the agreements or arrangements entered
into with such agencies, consultants, advisors or other
persons, impose obligations equivalent to those imposed
on the Authority under this Act, and require such agencies,
consultants, advisors and other persons to act only on
instructions from the Authority.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 36 of 567

29. Restriction on sharing information.— (1) No core
biometric information, collected or created under this Act,
shall be—

(a) shared with anyone for any reason whatsoever; or

(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.

(2) The identity information, other than core biometric
information, collected or created under this Act may be
shared only in accordance with the provisions of this Act
and in such manner as may be specified by regulations.

(3) No identity information available with a requesting
entity shall be—

(a) used for any purpose, other than that specified to the
individual at the time of submitting any identity information
for authentication; or

(b) disclosed further, except with the prior consent of the
individual to whom such information relates.

(4) No Aadhaar number or core biometric information
collected or created under this Act in respect of an Aadhaar
number holder shall be published, displayed or posted
publicly, except for the purposes as may be specified by
regulations.

30. Biometric information deemed to be sensitive
personal information.— The biometric information
collected and stored in electronic form, in accordance with
this Act and regulations made thereunder, shall be deemed
to be “electronic record” and “sensitive personal data or
information”, and the provisions contained in the

Information Technology Act, 2000
(21 of 2000) and the
rules made thereunder shall apply to such information, in
addition to, and to the extent not in derogation of the
provisions of this Act.

Explanation.—For the purposes of this section, the
expressions—

(a) “electronic form” shall have the same meaning as
assigned to it in clause (r) of sub-section (1) of
Section 2
of
the Information Technology Act, 2000 (21 of 2000);

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 37 of 567

(b) “electronic record” shall have the same meaning as
assigned to it in clause (t) of sub-section (1) of
Section 2
of
the Information Technology Act, 2000 (21 of 2000);

(c) “sensitive personal data or information” shall have the
same meaning as assigned to it in clause (iii) of the
Explanation to
Section 43-A
of the Information Technology
Act, 2000 (21 of 2000).”

37)
Section 32
provides that the Authority shall maintain

authentication records in such manner and for such period as

may be specified by regulations and enables every Aadhaar

number holder to obtain his authentication record in such manner

as may be specified by regulations. This provision also puts an

embargo upon the Authority to collect, keep or maintain any

information about ‘purpose of authentication’.
Section 33
,

however, creates an exception to the provisions of
Section 28(ii)

and (v) as well as
Section 29(ii)
by stipulating that the information

can be disclosed pursuant to an order of a court not inferior to

that of a District Judge. It also carves out another exception in

those cases where it becomes necessary to disclose the

information in the interest of national security in pursuance of a

direction of an officer not below the rank of Joint Secretary to the

Government of India specially authorised in this behalf by an

order of the Central Government.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 38 of 567

38)
Sections 34
to
in
Chapter VII of the Act
enumerate various

kinds of offences and provide penalties for such offences. For

our purposes, relevant Section is
Section 37
which makes act of

disclosing identity information as offence which is punishable with

imprisonment for a term which may extend to three years or with

a fine which may extend to ten thousand rupees. In the case of a

company, this fine can extend to one lakh rupees. Likewise,

Section 38
provides for penalty for unauthorised access to the

CIDR. Penalties for tampering with data in CIDR (
Section 39
)

and unauthorised use by requesting entity (
Section 40
) are also

stipulated.

Cognizance of offences under this Chapter can be taken by

a court only on a complaint made by the Authority or any officer or

person authorised by it.

39)
Section 50
of the Act empowers the Central Government to issue

directions to the Authority in writing from time to time and the

Authority shall be bound to carry out such directions on questions

of policy.
Section 53
empowers the Central Government to make

rules to carry out the provisions of the Act generally as well as the

specific matters enumerated in sub-section (2) thereof.
Section
empowers the Authority to make regulations consistent with

the Act and Rules made thereunder, for carrying out the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 39 of 567

provisions of the Act and, in particular, the matters mentioned in

sub-section (2). Such Rules and Regulations are to be laid

before the Parliament, as provided in
Section 55
.

40)
Section 57
provides that the Aadhaar Act would not prevent the

use of Aadhaar number for establishing the identity of an

individual for any purpose and reads as under:

“57. Act not to prevent use of Aadhaar number for
other purposes under law.— Nothing contained in this
Act shall prevent the use of Aadhaar number for
establishing the identity of an individual for any purpose,
whether by the State or any body corporate or person,
pursuant to any law, for the time being in force, or any
contract to this effect:

Provided that the use of Aadhaar number under this
section shall be subject to the procedure and obligations
under
Section 8
and Chapter VI.”

41) If any difficulty arises in giving effect to the provisions of the Act,

the Central Government is empowered to make provisions to

remove those difficulties, provided that such provisions are not

inconsistent with the provisions of the Act.
Section 59
, which is

the last provision in the Act, is an attempt to save all the acts and

actions of the Central Government under Notification dated

January 28, 2009 vide which the Authority was established or the

Department of Electronics and Information Technology under the

Cabinet Secretariat Notification dated September 12, 2015. This

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 40 of 567

provision is couched in the following language:

“59. Savings.— Anything done or any action taken by the
Central Government under the Resolution of the
Government of India, Planning Commission bearing
Notification Number A-43011/02/2009-Admin. I, dated the
28th January, 2009, or by the Department of Electronics
and Information Technology under the Cabinet Secretariat
Notification bearing Notification Number S.O. 2492(E),
dated the 12th September, 2015, as the case may be, shall
be deemed to have been validly done or taken under this
Act.”

42) Regulations have been framed under the Act, namely, (1) The

Aadhaar (Enrolment and Update) Regulations, 2016; (2) The

Aadhaar (Authentication) Regulations, 2016; (3) The Aadhaar

(Data Security) Regulations, 2016; and (4) The Aadhaar (Sharing

of Information) Regulations, 2016. The relevant provisions in

these Regulations are reproduced below:

“The Aadhaar (Enrolment and Update) Regulations, 2016

4. Demographic information required for enrolment. —
(1) The following demographic information shall be
collected from all individuals undergoing enrolment (other
than children below five years of age):

(i) Name;

(ii) Date of Birth;

(iii) Gender;

(iv) Residential Address.

(2) The following demographic information may also
additionally be collected during enrolment, at the option of
the individual undergoing enrolment:

(i) Mobile number

(ii) Email address

(3) In case of Introducer-based enrolment, the following
additional information shall be collected:

(i) Introducer name;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 41 of 567

(ii)Introducer’s Aadhaar number.

(4) In case of Head of Family based enrolment, the
following additional information shall be collected:

(i) Name of Head of Family;

(ii) Relationship;

(iii) Head of Family’s Aadhaar number;

(iv) One modality of biometric information of the Head of
Family.

(5) The standards of the above demographic information
shall be as may be specified by the Authority for this
purpose.

(6) The demographic information shall not include race,
religion, caste, tribe, ethnicity, language, record of
entitlement, income or medical history of the resident.

The Aadhaar (Authentication) Regulations, 2016

3. Types of Authentication.— There shall be two types of
authentication facilities provided by the Authority, namely—

(i) Yes/No authentication facility, which may be carried out
using any of the modes specified in regulation 4(2); and

(ii) e-KYC authentication facility, which may be carried out
only using OTP and/ or biometric authentication modes as
specified in regulation 4(2).

4. Modes of Authentication. — (1) An authentication
request shall be entertained by the Authority only upon a
request sent by a requesting entity electronically in
accordance with these regulations and conforming to the
specifications
laid down by
the Authority.

(2) Authentication may be carried out through the following
modes:

(a) Demographic authentication: The Aadhaar number and
demographic information of the Aadhaar number holder
obtained from the Aadhaar number holder is matched with
the demographic information of the Aadhaar number holder
in the CIDR.

(b) One-time pin based authentication: A One Time Pin
(OTP), with limited time validity, is sent to the mobile

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 42 of 567

number and/ or e-mail address of the Aadhaar number
holder registered with the Authority, or generated by other
appropriate means. The Aadhaar number holder shall
provide this OTP along with his Aadhaar number during
authentication and the same shall be matched with the
OTP generated by the Authority.

(c) Biometric-based authentication: The Aadhaar number
and biometric information submitted by an Aadhaar number
holder are matched with the biometric information of the
said Aadhaar number holder stored in the CIDR. This may
be fingerprints-based or iris-based authentication or other
biometric modalities based on biometric information stored
in the CIDR.

(d) Multi-factor authentication: A combination of two or
more of the above modes may be used for authentication.

(3) A requesting entity may choose suitable mode(s) of
authentication from the modes specified in sub-regulation
(2) for a particular service or business function as per its
requirement, including multiple factor authentication for
enhancing security. For the avoidance of doubt, it is
clarified that e-KYC authentication shall only be carried out
using OTP and/ or biometric authentication.

xx xx xx

7. Capturing of biometric information by requesting
entity.— (1) A requesting entity shall capture the biometric
information of the Aadhaar number holder using certified
biometric devices as per the processes and specifications

laid down by
the Authority.

(2) A requesting entity shall necessarily encrypt and secure
the biometric data at the time of capture as per the
specifications
laid down by
the Authority.

(3) For optimum results in capturing of biometric
information, a requesting entity shall adopt the processes
as may be specified by the Authority from time to time for
this purpose.

xx xx xx

9. Process of sending authentication requests.— (1)
After collecting the Aadhaar number or any other identifier

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 43 of 567

provided by the requesting entity which is mapped to
Aadhaar number and necessary demographic and / or
biometric information and/ or OTP from the Aadhaar
number holder, the client application shall immediately
package and encrypt these input parameters into PID block
before any transmission, as per the specifications
laid
down by
the Authority, and shall send it to server of the
requesting entity using secure protocols as may be
laid
down by
the Authority for this purpose.

(2) After validation, the server of a requesting entity shall
pass the authentication request to the CIDR, through the
server of the Authentication Service Agency as per the
specifications
laid down by
the Authority. The
authentication request shall be digitally signed by the
requesting entity and/or by the Authentication Service
Agency, as per the mutual agreement between them.

(3) Based on the mode of authentication request, the CIDR
shall validate the input parameters against the data stored
therein and return a digitally signed Yes or No
authentication response, or a digitally signed e-KYC
authentication response with encrypted e-KYC data, as the
case may be, along with other technical details related to
the authentication transaction.

(4) In all modes of authentication, the Aadhaar number is
mandatory and is submitted along with the input
parameters specified in sub-regulation (1) above such that
authentication is always reduced to a 1:1 match.

(5) A requesting entity shall ensure that encryption of PID
Block takes place at the time of capture on the
authentication device as per the processes and
specifications
laid down by
the Authority.

xx xx xx

18. Maintenance of logs by requesting entity. — (1) A
requesting entity shall maintain logs of the authentication
transactions processed by it, containing the following
transaction details, namely:—

(a) the Aadhaar number against which authentication is
sought;

(b) specified parameters of authentication request
submitted;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 44 of 567

(c) specified parameters received as authentication
response;

(d) the record of disclosure of information to the Aadhaar
number holder at the time of authentication; and

(e) record of consent of the Aadhaar number holder for
authentication, but shall not, in any event, retain the PID
information.

(2) The logs of authentication transactions shall be
maintained by the requesting entity for a period of 2 (two)
years, during which period an Aadhaar number holder shall
have the right to access such logs, in accordance with the
procedure as may be specified.

(3) Upon expiry of the period specified in sub-regulation
(2), the logs shall be archived for a period of five years or
the number of years as required by the laws or regulations
governing the entity, whichever is later, and upon expiry of
the said period, the logs shall be deleted except those
records required to be retained by a court or required to be
retained for any pending disputes.

(4) The requesting entity shall not share the authentication
logs with any person other than the concerned Aadhaar
number holder upon his request or for grievance redressal
and resolution of disputes or with the Authority for audit
purposes. The authentication logs shall not be used for any
purpose other than stated in this sub-regulation.

(5) The requesting entity shall comply with all relevant
laws, rules and regulations, including, but not limited to, the

Information Technology Act, 2000
and the
Evidence Act,
, for the storage of logs.

(6) The obligations relating to authentication logs as
specified in this regulation shall continue to remain in force
despite termination of appointment in accordance with
these regulations.

xx xx xx

26. Storage and Maintenance of Authentication
Transaction Data. — (1) The Authority shall store and
maintain authentication transaction data, which shall
contain the following information:—

(a) authentication request data received including PID
block;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 45 of 567

(b) authentication response data sent;

(c) meta data related to the transaction;

(d) any authentication server side configurations as
necessary Provided that the Authority shall not, in any
case, store the purpose of authentication.

The Aadhaar (Data Security) Regulations, 2016

3. Measures for ensuring information security. — (1)
The Authority may specify an information security policy
setting out inter alia the technical and organisational
measures to be adopted by the Authority and its personnel,
and also security measures to be adopted by agencies,
advisors, consultants and other service providers engaged
by the Authority, registrar, enrolling agency, requesting
entities, and Authentication Service Agencies.

(2) Such information security policy may provide for:—

(a) identifying and maintaining an inventory of assets
associated with the information and information processing
facilities;

(b) implementing controls to prevent and detect any loss,
damage, theft or compromise of the assets;

(c) allowing only controlled access to confidential
information;

(d) implementing controls to detect and protect against
virus/malwares;

(e) a change management process to ensure information
security is maintained during changes;

(f) a patch management process to protect information
systems from vulnerabilities and security risks;

(g) a robust monitoring process to identify unusual events
and patterns that could impact security and performance of
information systems and a proper reporting and mitigation
process;

(h) encryption of data packets containing biometrics, and
enabling decryption only in secured locations;

(i) partitioning of CIDR network into zones based on risk
and trust;

(j) deploying necessary technical controls for protecting
CIDR network;

(k) service continuity in case of a disaster;

(l) monitoring of equipment, systems and networks;

(m) measures for fraud prevention and effective remedies
in case of fraud;

(n) requirement of entering into non-disclosure agreements
with the personnel;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 46 of 567

(o) provisions for audit of internal systems and networks;

(p) restrictions on personnel relating to processes, systems
and networks.

(q) inclusion of security and confidentiality obligations in the
agreements or arrangements with the agencies,
consultants, advisors or other persons engaged by the
Authority.

(3) The Authority shall monitor compliance with the
information security policy and other security requirements
through internal audits or through independent agencies.

(4) The Authority shall designate an officer as Chief
Information Security Officer for disseminating and
monitoring the information security policy and other
security-related programmes and initiatives of the Authority.

xx xx xx

5. Security obligations of service providers, etc. — The
agencies, consultants, advisors and other service providers
engaged by the Authority for discharging any function
relating to its processes shall:

(a) ensure compliance with the information security policy
specified by the Authority;

(b) periodically report compliance with the information
security policy and contractual requirements, as required
by the Authority;

(c) report promptly to the Authority any security incidents
affecting the confidentiality, integrity and availability of
information related to the Authority’s functions;

(d) ensure that records related to the Authority shall be
protected from loss, destruction, falsification, unauthorised
access and unauthorised release;

(e) ensure confidentiality obligations are maintained during
the term and on termination of the agreement;

(f) ensure that appropriate security and confidentiality
obligations are provided for in their agreements with their
employees and staff members;

(g) ensure that the employees having physical access to
CIDR data centers and logical access to CIDR data centers
undergo necessary background checks;

(h) define the security perimeters holding sensitive
information, and ensure only authorised individuals are
allowed access to such areas to prevent any data leakage
or misuse; and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 47 of 567

(i) where they are involved in the handling of the biometric
data, ensure that they use only those biometric devices
which are certified by a certification body as identified by
the Authority and ensure that appropriate systems are built
to ensure security of the biometric data.

The Aadhaar (Sharing of Information) Regulations, 2016.

3. Sharing of information by the Authority. — (1) Core
biometric information collected by the Authority under the
Act shall not be shared with anyone for any reason
whatsoever.

(2) The demographic information and photograph of an
individual collected by the Authority under the Act may be
shared by the Authority with a requesting entity in response
to an authentication request for e-KYC data pertaining to
such individual, upon the requesting entity obtaining
consent from the Aadhaar number holder for the
authentication process, in accordance with the provisions
of the Act and the Aadhaar (Authentication) Regulations,
2016.

(3) The Authority shall share authentication records of the
Aadhaar number holder with him in accordance with
regulation 28 of the Aadhaar (Authentication) Regulations,
2016.

(4) The Authority may share demographic information and
photograph, and the authentication records of an Aadhaar
number holder when required to do so in accordance with

Section 33
of the Act.

xx xx xx

6. Restrictions on sharing, circulating or publishing of
Aadhaar number. — (1) The Aadhaar number of an
individual shall not be published, displayed or posted
publicly by any person or entity or agency.

(2) Any individual, entity or agency, which is in possession
of Aadhaar number(s) of Aadhaar number holders, shall
ensure security and confidentiality of the Aadhaar numbers
and of any record or database containing the Aadhaar
numbers.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 48 of 567

(3) Without prejudice to sub-regulations (1) and (2), no
entity, including a requesting entity, which is in possession
of the Aadhaar number of an Aadhaar number holder, shall
make public any database or record containing the
Aadhaar numbers of individuals, unless the Aadhaar
numbers have been redacted or blacked out through
appropriate means, both in print and electronic form.

(4) No entity, including a requesting entity, shall require an
individual to transmit his Aadhaar number over the Internet
unless such transmission is secure and the Aadhaar
number is transmitted in encrypted form except where
transmission is required for correction of errors or redressal
of grievances.

(5) No entity, including a requesting entity, shall retain
Aadhaar numbers or any document or database containing
Aadhaar numbers for longer than is necessary for the
purpose specified to the Aadhaar number holder at the
time of obtaining consent.”

43) To sum up broadly, the Authority is established under the Act as a

statutory body which is given the task of developing the policy,

procedure and system for issuing Aadhaar numbers to individuals

and also to perform authentication thereof as per the provisions

of the Act. For the purpose of enrolment and assigning Aadhaar

numbers, enrolling agencies are recruited by the Authority. All the

residents in India are eligible to obtain an Aadhaar number. To

enable a resident to get Aadhaar number, he is required to submit

demographic as well as biometric information i.e., apart from

giving information relating to name, date of birth and address,

biometric information in the form of photograph, fingerprint, iris

scan is also to be provided. Aadhaar number given to a particular

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 49 of 567

person is treated as unique number as it cannot be reassigned to

any other individual.

Insofar as subsidies, benefits or services to be given by the

Central Government or the State Government, as the case may

be, is concerned, these Governments can mandate that receipt of

these subsidies, benefits and services would be given only on

furnishing proof of possession of Aadhaar number (or proof of

making an application for enrolment, where Aadhaar number is

not assigned). An added requirement is that such individual

would undergo authentication at the time of receiving such

benefits etc. A particular institution/body from which the aforesaid

subsidy, benefit or service is to be claimed by such an individual,

the intended recipient would submit his Aadhaar number and is

also required to give her biometric information to that agency. On

receiving this information and for the purpose of its

authentication, the said agency, known as Requesting Entity,

would send the request to the Authority which shall perform the

job of authentication of Aadhaar number. On confirming the

identity of a person, the individual is entitled to receive subsidy,

benefit or service. Aadhaar number is permitted to be used by

the holder for other purposes as well.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 50 of 567

44) In this whole process, any resident seeking to obtain an Aadhaar

number is, in the first instance, required to submit her

demographic information and biometric information at the time of

enrolment. She, thus, parts with her photograph, fingerprint and

iris scan at that stage by giving the same to the enrolling agency,

which may be a private body/person. Likewise, every time when

such Aadhaar holder intends to receive a subsidy, benefit or

service and goes to specified/designated agency or person for

that purpose, she would be giving her biometric information to

that requesting entity, which, in turn, shall get the same

authenticated from the Authority before providing a subsidy,

benefit or service. Whenever request is received for

authentication by the Authority, record of such a request is kept

and stored in the CIDR. At the same time, provisions for

protection of such information/data have been made, as indicated

above. Aadhaar number can also be used for purposes other

than stated in the Act i.e. purposes other than provided under

Section 7
of the Act, as mentioned in
Section 57
of the Act, which

permit the State or any body corporate or person, pursuant to any

law, for the time being in force, or any contract to this effect, to

use the Aadhaar number for establishing the identity of an

individual. It can be used as a proof of identity, like other identity

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 51 of 567

proofs such as PAN card, ration card, driving licence, passport

etc.

45) Piercing into the aforesaid Aadhaar programme and its

formation/structure under the Aadhaar Act, foundational

arguments are that it is a grave risk to the rights and liberties of

the citizens of this country which are secured by the Constitution

of India. It militates against the constitutional abiding values and

its foundational morality and has the potential to enable an

intrusive state to become a surveillance state on the basis of

information that is collected in respect of each individual by

creation of a joint electronic mesh.
In this manner, the Act strikes

at the very privacy of each individual thereby offending the right

to privacy which is elevated and given the status of fundamental

right by tracing it to
Articles 14
, 19
and
of the Constitution of

India by a nine Judge Bench judgment of this Court in
K.S.

Puttaswamy & Anr. v. Union of India & Ors.6
. 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. However, apprehensions have been expressed

about the manner in which the Scheme has been rolled out and

6 (2017) 10 SCC 1

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 52 of 567

implemented. The entire edifice of the aforesaid projection is

based on the premise that it forces a person, who intends to enrol

for Aadhaar, to part with his core information namely biometric

information in the form of fingerprints and iris scan. These are to

be given to the enrolment agency in the first instance which is a

private body and, thus, there is risk of misuse of this vital

information pertaining to an individual. Further, it is argued that

the most delicate and fragile part, susceptible to misuse, is the

authentication process which is to be carried out each time the

holder of Aadhaar number wants to establish her identity. At that

stage, not only the individual parts with the biometric information

again with the RE (which may again be a private agency as well),

the purpose for which such a person approaches the RE would

also be known i.e. the nature of transaction which is supposed to

be undertaken by the said person at that time. Such information

relating to different transactions of a person across the life of the

citizen is connected to a central database. This record may

enable the State to profile citizens, track their movements, assess

their habits and silently influence their behaviour. Over a period

of time, the profiling would enable the State to stifle dissent and

influence political decision making. It may also enable the State

to act as a surveillant state and there is a propensity for it to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 53 of 567

become a totalitarian state. It is stressed that at its core, Aadhaar

alters the relationship between the citizen and the State. It

diminishes the status of the citizen. Rights freely exercised,

liberties freely enjoyed, entitlements granted by the Constitution

and laws are all made conditional, on a compulsory barter. The

barter compels the citizen to give up her biometrics ‘voluntarily’,

allow her biometrics and demographic information to be stored by

the State and private operators and then used for a process

termed ‘authentication’.

To put it in nutshell, provisions of the Aadhaar Act are

perceived by the petitioners as giving away of vital information

about the residents to the State not only in the form of biometrics

but also about the movement as well as varied kinds of

transactions which a resident would enter into from time to time.

The threat is in the form of profiling the citizens by the State on

the one hand and also misuse thereof by private agencies

whether it is enrolling agency or requesting agency or even

private bodies mentioned in
Section 57
of the Act. In essence, it

is stated that not only data of aforesaid nature is stored by the

CIDR, which has the threat of being leaked, it can also be

misused by non-State actors. In other words, it is sought to be

highlighted that there is no assurance of any data protection at

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 54 of 567

any level.

46) The respondents, on the other hand, have attempted to shake the

very foundation of the aforesaid structure of the petitioners’ case.

They argue that in the first instance, minimal biometric

information of the applicant, who intends to have Aadhaar

number, is obtained which is also stored in CIDR for the purpose

of authentication. Secondly, no other information is stored. It is

emphasised that there is no data collection in respect of religion,

caste, tribe, language records of entitlement, income or medical

history of the applicant at the time of Aadhaar enrolment. Thirdly,

the Authority also claimed that the entire Aadhaar enrolment eco-

system is foolproof inasmuch as within few seconds of the

biometrics having been collected by the enrolling agency, the said

information gets transmitted the Authorities/CIDR, that too in an

encrypted form, and goes out of the reach of the enrolling

agency. Same is the situation at the time of authentication as

biometric information does not remain with the requesting

agency. Fourthly, while undertaking the authentication process,

the Authority simply matches the biometrics and no other

information is received or stored in respect of purpose, location or

nature or transaction etc. Therefore, the question of profiling does

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 55 of 567

not arise at all. A powerpoint presentation was given by Dr. Ajay

Bhushan Pandey, CEO of the Authority, in the Court, while

explaining various nuances of the whole process. In this

presentation, the enrolment process has been projected in the

following manner:

47) Insofar as Aadhaar authentication service is concerned, it was

explained that the same is e-KYC wherein following process is

involved:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 56 of 567

48) It was asserted with all vehemence that while doing the aforesaid

authentication, no other information is collected or stored by the

Authority/CIDR, specifically pointing that:

(a) The Authority does not collect purpose, location or details of

transaction. Thus, it is purpose blind.

(b) The information collected as aforesaid remains in silos.

(c) Merging of silos is prohibited.

(d) The RE is provided answer only in Yes or No about the

authentication of the person concerned.

(e) The authentication process is not exposed to the internet

world.

(f) Security measures as per the provisions of
Section 29(3)

read with Section 38(g) as well as Regulation 17(1)(d) of the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 57 of 567

Authentication Regulations are strictly followed and adhere to.

The Aadhaar Authentication Security has been described in

the following manner:

49) In this hue, the Authority has projected that the Aadhaar design

takes full care of privacy and security of the persons. It is sought

to be demonstrated by pointing out the following features:

(i) Privacy is ensured by the very design of Aadhaar which was

conceived by the Authority from very inception and is now even

incarnated in the Aadhaar Act because : (a) it is backed by

minimal data, federated databases, optimal ignorance; and (b)

there is no transaction/pooling data coupled with the fact that

resident authorised access to identity data is available.

(ii) Aadhaar is designed for inclusion inasmuch as : (a) there is

flexibility of demographic data, multi-modal biometrics, and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 58 of 567

flexible processes; (b) DDSVP Committee by Dr. V.N. Vittal,

former CVC; and (c) Biometric design and Standards Committee

by Dr. Gairola, Former DG, NIC.

(iii) All security numbers are followed which can be seen from:

(a) PKI-2048 encryption from the time of capture, (b) adoption of

best-in-class security standards and practices, and (c) strong

audit and traceability as well as fraud detection.

50) It was explained that the security and data privacy is ensured in

the following way:

(i) The data sent to ABIS is completely anonymised. The ABIS

systems do not have access to resident’s demographic

information as they are only sent biometric information of a

resident with a reference number and asked to de-duplicate. The

de-duplication result with the reference number is mapped back

to the correct enrolment number by the Authorities own enrolment

server.

(ii) The ABIS providers only provide their software and

services. The data is stored in UIDAI storage and it never leaves

the secure premises.

(iii) The ABIS providers do not store the biometric images

(source). They only store template for the purpose of de-

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 59 of 567

duplication (with reference number).

(iv) The encrypted enrolment packet sent by the enrolment

client software to the CIDR is decrypted by the enrolment server

but the decrypted packet is never stored.

(v) The original biometric images of fingerprints, iris and face

are archived and stored offline. Hence, they cannot be accessed

through an online network.

(vi) The biometric system provides high accuracy of over

99.86%. The mixed biometric have been adopted only t enhance

the accuracy and to reduce the errors which may arise on

account of some residents either not having biometrics or not

having some particular biometric.

51) Above all, there is an oversight by Technology and Architecture

Review Board (TARB) and Security Review Committee. This

Board and Committee consists of very high profiled officers. The

aforesaid security measures are shown by the Authority in the

following manner:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 60 of 567

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 61 of 567

52) We may point out at this stage that to the powerpoint

presentation by Dr. Pandey on the aforesaid lines, certain

questions were put to him by Mr. Shyam Divan as well as Mr.

Vishwanathan, senior advocates, and the answers thereto were

given by Dr. Pandey. In order to have the complete picture, we

will be well advised to reproduce these questions and their

answers as well, which are as follows:

53) Questions and Answers to the queries raised by the petitioners in
W.P. (C) No. 1056 of 2017 entitled ‘Nachiket Udupa & Anr. v.

Union of India

(1) What are the figures for authentication failures, both at the

national and state level? Please provide a breakup, between

fingerprints and iris.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 62 of 567

Ans.: UIDAI cannot provide authentication failure rates at the

state level since it does not track the location of the authentication

transactions. Authentication failure rate at national level is as

below:

Modality Unique UID Failed Unique ID Failed Percentage
Participated
IRIS 1,08,50,391 9,27,132 8.54%
FINGER 61,63,63,346 3,69,62,619 6.00%

It must be stated that authentication failures do not mean

exclusion or denial from subsidies, benefits or services since the

requesting entities are obliged under the law to provide for

exception handling mechanisms.

(2) In case a person who is claiming a biometric exception (e.g.

a person suffering from leprosy) does not have a mobile phone

number, or has not given it in the enrolment form, or if the phone

number changes – how will her Aadhaar enrolment and

subsequent authentication occur and under which provision of

law?

Ans.: Aadhaar enrolment is done for all residents, even of

residents with leprosy. Biometric exception process is defined in

the UIDAI resident enrolment process. In the case of a leprosy

patient, who may not be able to do fingerprint authentication, iris

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 63 of 567

authentication can be used for update (and add the mobile

number). This was the reason for multi-modal enrolment and

authentication being selected for use in Aadhaar.

Only in an unlikely scenario where both iris and fingerprint

cannot be used for authentication, the mobile number is one of

the methods for authentication. In cases where authentication

through mobile number is not possible or feasible, the requesting

entities have to provide their own exception and backup

mechanism to ensure services to Aadhaar holders. As part of the

exception handling mechanism, UIDAI has already implemented

a digitally signed QR code into e-Aadhaar which allows agencies

to verify the Aadhaar card in an off-line manner and trust the data

(based on digital signature validation) without accessing e-KYC

API service of UIDAI. This is a simple off-line mechanism to

quickly verify the legitimacy of the Aadhaar card. But, it does not

ensure that the person holding the card is the owner of that

Aadhaar number. It needs either manual check of photo against

the face of the individual (like the way ID is verified at the entry of

airports) or some form of electronic authentication using Aadhaar

authentication API or agency specific authentication scheme. QR

code based verification allows Aadhaar number holders to use

their ID on a day-to-day purpose without using online e-KYC

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 64 of 567

authentication. The verification through offline QR code can be

used for those purposes or cases where proof of presence or

proof of ownership of card is not required.

The Aadhaar Act and Aadhaar (Enrolment and Update)

Regulations, 2016 define special provision for enrolment of

residents with biometric exception. Further, as per
Regulation

14(i)
of the Authentication Regulations, RE shall implement

exception-handling mechanisms and backup identity

authentication mechanisms to ensure seamless provision of

authentication services to Aadhaar number holders. Accordingly,

DBT Mission Cabinet Secretariat has issued a detailed circular

dated December 19, 2017 regarding exception handling during

use of Aadhaar in the benefit schemes of the Government.

(3) Are there any surprise checks, field studies done to check

the authenticity of the exemption registers?

Ans.: As per
Regulation 14(i)
of the Authentication Regulations,

this exception handling mechanism is to be implemented and

monitored by the requesting entities and in case of the

Government, their respective Ministries. Further, the DBT

Mission Cabinet Secretariat had issued Circular dated December

19, 2017 on exception handling and audit of exceptions.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 65 of 567

(4) Between the ages of 5-15 years, can a school, as an

‘introducer’, enrol a child without parental consent?

Ans.: School officials, if permitted to act as ‘introducer’, can enrol

only when there is a parental consent to enrol. The disclosure

requirement as per Section 3(2) of the Aadhaar Act and the

Aadhaar (Enrolment and Update) Regulations, 2016 (Schedule-I)

is implemented through the enrolment form which is signed by the

resident making it informed disclosure. In case of children, the

consent form will be signed by the parent/guardian.

(5) Once a child attains the age of 18 years, is there any way

for them to opt out or revoke consent?

Ans.: It is not permissible under the Aadhaar Act. However,

residents have the option of permanently locking their biometrics

and only temporarily unlock it when needed for biometric

authentication as per
Regulation 11
of the Authentication

Regulations.

(6) What is the status of the enrolments done by the 49,000

blacklisted enrolment operators? Please provide the number of

enrolments done by them?

Ans.: UIDAI has a policy to enforce the process guidelines and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 66 of 567

data quality check during the enrolment process. 100% of the

enrolment done by operators undergoes a quality assurance

check, wherein every enrolment passes through a human eye.

Any Aadhaar enrolment found to be contrary to the UIDAI

process, the enrolment itself gets rejected and Aadhaar is not

generated. The resident is advised to re-enroll. Once an

operator is blacklisted or suspended, further enrolments cannot

be carried out by him during the time the order of

blacklisting/suspension is valid.

(7) What are the total number of biometric De-duplication

rejections that have taken place till date? In case an enrolment is

rejected either for: (a) duplicate enrolment and (b) other technical

reason under
Regulation 14
of the Aadhaar Enrolment

Regulations, what happens to the data packet that contains the

stored biometric and demographic information?

Ans.: The total number of biometric de-duplication rejections that

have taken place are 6.91 crores as on March 21, 2018. These

figures do not pertain to the number of unique individuals who

have been denied Aadhaar enrolment resulting in no Aadhaar

issued to them. This figure merely pertains to the number of

applications which have been identified by the Aadhaar de-

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 67 of 567

duplication system as having matching biometrics to an existing

Aadhaar number holder. The biometric de-duplication system is

designed to identify as duplicate those cases where any one of

the biometrics (ten fingers and two irises) match. However, very

often it is found that all the biometrics match. It is highly

improbable for the biometrics to match unless the same person

has applied again. There are a number of reasons why the same

person might apply more than once. For instance, many

individuals innocently apply for enrolment multiple times because

of the delay in getting their Aadhaar cards due to postal delays,

loss or destruction of their cards or confusion about how the

system works. Each time one applies for Aadhaar, the system

identifies her as a new enrolment but when it recognises that the

individual’s biometrics match with already those in the database,

thereafter further checks, including manual check through

experienced personnels, are done. After that exercise, if it is

found that the person is already registered, it rejects the

enrolment application. One of their main reasons for rejection is

that multiple people would put their biometric details like

fingerprints for Aadhaar generation either as a fraudulent exercise

or by mistake, which also would get rejected. There were many

fakes and frauds in the earlier systems and several reports have

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 68 of 567

found that almost 50% of the subsidies were getting pilfered away

by fakes and duplicates in the system. Then, there would also be

several such people who may have tried to defraud the Aadhaar

enrolment system as well but failed get multiple Aadhaar numbers

due to the stringent Aadhaar de-duplication process. Thus, the

mere fact that 6.23 crore enrolments have been rejected as

biometric duplicates does not mean that 6.23 crore people have

been denied an Aadhaar number as has been alleged by the

petitioners. Any genuine person who does not have an Aadhaar

number and whose enrolment has been rejected can always

apply again for enrolment. It is worth noting that none of the de-

duplication rejects have come forward to lodge complaints either

with the Authority or with the Government about denial of Aadhaar

number. None of them have even approached any Court of law.

Evidently, the genuine residents have got themselves re-enrolled

and the rest are those who were trying to reach the Aadhaar

system by fraudulent means. That explains why no one has

approached a court of law complaining denial of Aadhaar number.

All the enrolment packets received by UIDAI (accepted/rejected)

are archived in the CIDR irrespective of its status.

(8) If the figure of rejection of enrolment packets was 8 crore,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 69 of 567

as on 2015, what is the total rejection figure for enrolment

packets as on date? How many field studies/physical verification

have been done to ensure that these persons (who have been

rejected) are indeed “False or duplicate” enrolments?

Ans.: The total rejection figure for enrolment packets is 18.0 cr.

as on March 26, 2018. These rejections are due to various

technical reasons like: (i) data quality reject such as address

incomplete, name incomplete, use of expletives in names,

address etc. photo is of object, photo of photo, age photo

mismatch etc.; and (ii) OSI validation reject such as operator /

supervisor / introducer validation failed, operator / supervisor /

introducer / Head of Family biometric validation failed etc.

Those whose enrolments have been rejected for any reason

and who do not have Aadhaar can re-enrol and obtain Aadhaar.

Rejection of enrolments do not mean that the person will never be

able to get Aadhaar.

(9) What does “any other appropriate response” under Section

8(4) of the Aadhaar Act include?

Ans.: “Any other appropriate responses” includes e-KYC or

limited e-KYC data. As per
Regulation 3
of Authentication

Regulations, UIDAI provides two types of authentication facilities,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 70 of 567

namely -

(i) Yes/No authentication facility; and

(ii) e-KYC authentication facility.

In Yes/No authentication, UIDAI provides the response as

Yes or No along with relevant error codes, if any.

In e-KYC authentication, UIDAI provides the demographic

data along with photograph and in case of mismatch/error, the

relevant error codes.

54) Questions and Answers to the queries raised by the petitioners in
W.P. (C) No. 829 of 2013 entitled
‘S.G. Vombatkere & Anr. v.
Union of India

(1) Please confirm that no UIDAI official verifies the correctness

of documents offered at the stage of enrolment/updating.

Ans.: As per UIDAI process, the verification of the documents is

entrusted to the Registrar. For Verification based on Documents,

the verifier present at the Enrolment Centre will verify the

documents. Registrars/Enrolment agency must appoint personnel

for the verification of documents.

(2) Please confirm that UIDAI does not know whether the

documents shown at the time of enrolment/updating are genuine

or false.

Ans.: The answer is same as in (1) above.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 71 of 567

(3) Please confirm:

(a) UIDAI does not identify the persons it only matches the

biometric information received at the time of authentication with

its records and provides a Yes/No response;

Ans.: Biometric authentication of an Aadhaar number holder is

always performed as 1:1 biometric match against his/her Aadhaar

number (identity) in CIDR. Based on the match, UIDAI provides

Yes or No response. A “Yes” response means a positive

identification of the Aadhaar number holder.

Each enrolment is biometrically de-duplicated against all

(1.2 billion) residents to issue the Aadhaar number (or Unique

Identity).

(b) UIDAI takes no responsibility with respect to the correctness

of the name, date of birth or address of the person enrolled.

Ans.: The Name/Address/DOB are derived from the Proof of

Identity (POI)/Proof of Address (POA) documents submitted

during enrolments.

The enrolment/update packet (encrypted) retains a scanned

copy of the POI/POA documents used for the enrolment which

can be reviewed in case of dispute.

UIDAI maintains the update history of each Aadhaar

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 72 of 567

number related to changes in name, address, date of birth etc.

(4) Please confirm:

(a) UIDAI takes no responsibility with respect to the correct

identification of a person.

Ans.: Please refer to Answer (1) above. Additionally, it may be

stated that enrolment of Aadhaar is done through a resident

enrolment process and verification of the POI/POA document is

done against the acceptable documents, as per the UIDAI valid

list of documents as provided in Schedule II and III Aadhaar

(Enrolment and Update) Regulations, 2016 read with Regulation

10.

UIDAI takes responsibility in creating and implementing

standards, ensuring matching systems installed in CIDR work as

they are designed to do, and providing options to Aadhaar

holders in terms of controlling their identity (such as updating their

data, locking their biometrics, etc.) and accessing their own

authentication records. One of the key goals of Aadhaar is to

issue a unique identity for the residents of India. Hence, each

enrolment is biometrically de-duplicated against all (1.2 billion)

residents to issue the Aadhaar number (or Unique Identity).

Section 4
of Aadhaar lays down the properties of an

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 73 of 567

Aadhaar number. Sub-section (3) of
Section 4
reads as under:

“(3) An Aadhaar number, in physical or electronic form
subject to authentication and other conditions, as may be
specified by regulations, may be accepted as proof of
identity of the Aadhaar number holder for any purpose.”

The requesting entities are at liberty to use any or multiple

of authentication mode available under
Regulation 4
of Aadhaar

(Authentication) Regulation, 2016 as per their requirements and

needs of security etc.

(b) The biometric authentication is based on a probabilistic

match of the biometric captured during authentication and the

record stored with CIDR.

Ans.: Biometric authentication is based on 1:1 matching and,

therefore, in that sense it is not probabilistic. If biometrics are

captured it will lead to successful authentication. If biometrics are

not well captured during authentication or an impostor tries

authentication, it will lead to authentication failure. Aadhaar Proof

of Concept studies show that a vast majority of residents (>98%)

can successfully authenticate using biometric modalities such

fingerprints and/or iris.

However, the Aadhaar Act and Regulations provides that an

Aadhaar number holder cannot be denied service due to the

failure of Aadhaar authentication. Hence, all Aadhaar

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 74 of 567

applications must implement exception processes. Possible

methods to implement the exception process include:

(i) Family Based Authentication: Family based applications

such as PDS or Health applications may allow authentication by

family members to allow resident to avail services.

(ii) Alternate Modalities: Some applications may use different

modalities for exception handling. Alternate modalities include:

(a) Iris Authentication

(b) OTP Authentication (if allowed by policy)

(iii) Biometric Fusion: UIDAI is introducing face authentication

as secondary authentication factor to reduce the rate of

authentication failures, especially for senior citizens. At this time,

face authentication will be used only conjunction with another

authentication factor such as finger/iris/OTP.

(a) Face + Finger Fusion

(b) Face + Iris Fusion

(c) Face + OTP Fusion

(iv) Non Aadhaar Based Exception process: Applications may

implement non-Aadhaar based exception process to ensure that

no resident is denied service. Applications need to monitor the

use of exceptions in their applications to prevent misuse of the

exception process.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 75 of 567

(v) Accordingly, DBT Mission Cabinet Secretariat had issued a

detailed circular dated December 19, 2017 regarding use of

Aadhaar in benefit schemes of Government – exception handling.

(5) Please confirm that with respect to individuals under 15

years and over 60 years of age, biometric authentication is likely

to fail due to changes in/fading of biometrics such as fingerprints.

Ans.: Though there is no conclusive evidence to say that

biometric authentication success is dependent upon age, slightly

higher authentication failure rates have been observed only for

fingerprints for senior citizens above the age of 70. A number of

exception processes are provided in answer to Question 4(b)

above to prevent denial of service for failure of authentication.

Further, in case of any issue in biometric authentication, an

Aadhaar number holder may update his/her biometric at any of

the Aadhaar enrolment centres, which is also provided for in the

Aadhaar Act.

(6) Please confirm that the reasons why over 49000 enrolment

operators were blacklisted include: (i) failure to verify documents

presented; (ii) failure to maintain records of documents submitted;

(iii) misuse of information submitted; and (iv) aiding or abetting

false enrolments?

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 76 of 567

Ans.: UIDAI has a policy to enforce the process guidelines and

data quality check during the enrolment process. 100% of the

enrolments done by operators undergoes a quality assurance

check. If any Aadhaar enrolment is found to be not as per the

UIDAI process, the enrolment itself gets rejected and Aadhaar is

not generated. If such mistake by an operator crosses a

threshold defined in the policy, the operator is blacklisted/

removed from the UIDAI ecosystem. As such, of the 49,000

operators who have been blacklisted/removed from the UIDAI

eco-system, all the enrolments which were in violation of the

process were rejected in the QA stage. Enrolment operators may

be blacklisted for the following reasons:

 illegally charging the resident for Aadhaar enrolment

 poor demographic data quality

 invalid biometric exceptions

 other process malpractice

(7) Please confirm:

(a) At the stage of enrolment, there is no verification as to

whether a person is an illegal immigrant.

(b) At the stage of enrolment, there is no verification about a

person being resident in India for 182 days or more in the past 12

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 77 of 567

months.

(c) Foreign nationals may enrol and are issued Aadhaar

numbers.

(d) Persons retain their Aadhaar number even after they cease

to be resident. This is true of foreign nationals as well.

Ans.:

(a) At the time of enrolment, verification is done based upon

documents provided by the resident. In case any violation of

prescribed guidelines comes to light, the concerned Aadhaar is

omitted/deactivated.

(b) This has been included through the enrolment form where

resident undertakes and signs the disclosure:

“Disclosure under
Section 3(2)
of the Aadhaar (Targeted
Delivery of Financial And Other Subsidies, Benefits and
Services) Act, 2016

I confirm that I have been residing in India for at least 182
days in the preceding 12 months & information (including
biometrics) provided by me to the UIDAI is my own and is
true, correct and accurate. I am aware that my information
(including biometrics) will be used for generation of
Aadhaar and authentication. I understand that my identity
information (except core biometric) may be provided to an
agency only with my consent during authentication or as
per the provisions of the Aadhaar Act. I have a right to
access my identity information (except core biometrics)
following the procedure
laid down by
UIDAI.”

(c) Aadhaar is issued to the resident of India and the word

‘resident’ is defined in Section 2(v) of the Aadhaar Act. Aadhaar

numbers may be issued to foreign nationals who are resident in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 78 of 567

India.
Section 2(v)
reads as under:

“ ‘resident’ means an individual who has resided in India for
a period or periods amounting in all to one hundred and
eighty-two days or more in the twelve months immediately
preceding the date of application for enrolment;”

A foreign national fulfilling the above criteria is eligible for

Aadhaar, provided he submits the acceptable POI/POA document

as per the UIDAI valid list of documents.

(d) As per the Aadhaar Act, an Aadhaar number is issued to a

resident who has been residing in India for at least 182 days in

the preceding 12 months. An Aadhaar number is issued to an

individual for life and may be omitted/deactivated in case of

violation of prescribed guidelines only. Ineligibility of a person to

retain an Aadhaar number owing to become non-resident may be

treated as a ground for deactivation of Aadhaar number and

Regulation 28(l)(f)
of the Aadhaar Enrolment Regulations. This is

in keeping with
Section 31(1)
and (3) of the Aadhaar Act wherein

it is an obligation on an Aadhaar number holder to inform the

UIDAI of changes in demographic information and for the

Authority to make the necessary alteration.

(8) Please confirm the Points Of Service (POS) biometric

readers are capable of storing biometric information.

Ans.: UIDAI has mandated use of Registered Devices (RD) for

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 79 of 567

all authentication requests. With RDs, biometric data is signed

within the device/RD service using the provider key to ensure it is

indeed captured live. The device provider RD service encrypts

the PID block before returning to the host application. This RD

service encapsulates the biometric capture, signing and

encryption of biometrics all within it. Therefore, introduction of

RD in Aadhaar authentication system rules out any possibility of

use of stored biometric and replay of biometrics captured from

other source. Requesting entities are not legally allowed to store

biometrics captured for Aadhaar authentication under
Regulation

17(1)(a)
of the Authentication Regulations.

(9) Referring to slide/page 13, please confirm that the

architecture under the Aadhaar Act includes: (i) authentication

user agencies (e.g. Kerala Dairy Farmers Welfare Fund Board);

(ii) authentication service agencies (e.g. Airtel); and (iii) CIDR.

Ans.: UIDAI appoints Requesting Entities (AUA/KUA) and

Authentication Service Agency (ASA) as per
Regulation 12
of

Authentication Regulations. List of Requesting Entitles

(AUA/KUA) and Authentication Service Agency appointed by

UIDAI is available on UIDAI’s website. An AUA/KUA can do

authentication on behalf of other entities under
Regulation 15
and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 80 of 567

Regulation 16
.

(10) Please confirm that one or more entitles in the Aadhaar

architecture described in the previous paragraph record the date

and time of the authentication, the client IP, the device ID and

purpose of authentication.

Ans.: UIDAI does not ask requesting entities to maintain any logs

related to IP address of the device, GPS coordinates of the

device and purpose of authentication. However, AUAs like banks,

telecom etc., in order to ensure that their systems are secure,

frauds are managed, they may store additional information as per

their requirement under their respective laws to secure their

system. Section 32(3) of the Aadhaar Act specifically prevents

the UIDAI from either by itself or through any entity under its

control to keep or maintain any information about the purpose of

authentication.

Requesting entities are mandated to maintain following logs

as per
Regulation 18
of the Authentication Regulations. These

are:

(i) the Aadhaar number against which authentication is

sought;

(ii) specified parameters of authentication request

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 81 of 567

submitted;

(iii) specified parameters received as authentication

response;

(iv) the record of disclosure of information to the Aadhaar

number holder at the time of authentication; and

(v) record of consent of the Aadhaar number holder for

authentication, but shall not, in any event, retain the PID

information.

Further, even if a requesting entity captures any other data

as per their own requirement, UIDAI will only audit the

authentication logs maintained by the requesting entity as per

Regulation 18(1)
of the Authentication Regulations.

ASAs are not permitted to maintain any logs related to IP

address of the device, GPS coordinates of the device etc. ASAs

are mandated to maintain logs as per
Regulation 20
of the

Authentication Regulations:

(i) identity of the requesting entity;

(ii) parameters of authentication request submitted; and

(iii) parameters received as authentication response.

Provided that no Aadhaar number, PID information, device

identity related data and e-KYC response data, where applicable,

shall be retained.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 82 of 567

(11) Referring to slide/page 7 and 14, please confirm that

‘traceability’ features enable UIDAI to track the specific device

and its location from where each and every authentication takes

place.

Ans.: UIDAI gets the AUA code, ASA code, unique device code,

registered device code used for authentication. UIDAI does not

get any information related to the IP address or the GPS location

from where authentication is performed as these parameters are

not part of authentication (v2.0) and e-KYC (v2.1) API UIDAI

would only know from which device the authentication has

happened, through which AUA/ASA etc. This is what the slides

meant by traceability. UIDAI does not receive any information

about at what location the authentication device is deployed, its

IP address and its operator and the purpose of authentication.

Further, the UIDAI or any entity under its control is statutorily

barred from collecting, keeping or maintaining any information

about the purpose of authentication under Section 32(3) of the

Aadhaar Act.

Summing up the Scheme:

55) The whole architecture of Aadhaar is devised to give unique

identity to the citizens of this country. No doubt, a person can

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 83 of 567

have various documents on the basis of which that individual can

establish her identify. It may be in the form of a passport,

Permanent Account Number (PAN) card, ration card and so on.

For the purpose of enrolment itself number of documents are

prescribed which an individual can produce on the basis of which

Aadhaar card can be issued. Thus, such documents, in a way,

are also proof of identity. However, there is a fundamental

difference between the Aadhaar card as a mean of identity and

other documents through which identity can be established.

Enrolment for Aadhaar card also requires giving of demographic

information as well as biometric information which is in the form

of iris and fingerprints. This process eliminates any chance of

duplication. It is emphasised that an individual can manipulate

the system by having more than one or even number of PAN

cards, passports, ration cards etc. When it comes to obtaining

Aadhaar card, there is no possibility of obtaining duplicate card.

Once the biometric information is stored and on that basis

Aadhaar card is issued, it remains in the system with the

Authority. Wherever there would be a second attempt for

enrolling for Aadhaar and for this purpose same person gives his

biometric information, it would immediately get matched with the

same biometric information already in the system and the second

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 84 of 567

request would stand rejected. It is for this reason the Aadhaar

card is known as Unique Identification (UID). Such an identity is

unparalleled.

56) There is, then, another purpose for having such a system of

issuing unique identification cards in the form of Aadhaar card. A

glimpse thereof is captured under the heading ‘Introduction’

above while mentioning how and under what circumstances the

whole project was conceptualised. To put it tersely, in addition to

enabling any resident to obtain such unique identification proof, it

is also to empower marginalised section of the society,

particularly those who are illiterate and living in abject poverty or

without any shelter etc. It gives identity to such persons also.

Moreover, with the aid of Aadhaar card, they can claim various

privileges and benefits etc. which are actually meant for these

people.

Identity of a person has a significance for every individual in

his/her life. In a civilised society every individual, on taking birth,

is given a name. Her place of birth and parentage also becomes

important as she is known in the society and these demographic

particulars also become important attribute of her personality.

Throughout their lives, individuals are supposed to provide such

information: be it admission in a school or college or at the time of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 85 of 567

taking job or engaging in any profession or business activity, etc.

When all this information is available in one place, in the form of

Aadhaar card, it not only becomes unique, it would also qualify as

a document of empowerment. Added with this feature, when an

individual knows that no other person can clone her, it assumes

greater significance.

57) Thus, the scheme by itself can be treated as laudable when it

comes to enabling an individual to seek Aadhaar number, more

so, when it is voluntary in nature. Howsoever benevolent the

scheme may be, it has to pass the muster of constitutionality.

According to the petitioners, the very architecture of Aadhaar is

unconstitutional on various grounds, glimpse whereof can be

provided at this stage:

Gist of the challenge to the Aadhaar Scheme as well as the Act:

58) The petitioners accept that the case at hand is unique, simply

because of the reason that the programme challenged here is

itself without precedent. According to them, no democratic

society has adopted a programme that is similar in its command

and sweep. The case is about a new technology that the

Government seeks to deploy and a new architecture of

governance that it seeks to build on this technology. The

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 86 of 567

petitioners are discrediting the Government’s claim that biometric

technology employed and the Aadhaar Act is greatly beneficial.

As per the petitioners, this is an inroad into the rights and liberties

of the citizens which the Constitution of India guarantees. It is

intrusive in nature. At its core, Aadhaar alters the relationship

between the citizen and the State. It diminishes the status of the

citizens. Rights freely exercised, liberties freely enjoyed,

entitlements granted by the Constitution and laws are all made

conditional, on a compulsory barter. The barter compels the

citizens to give up their biometrics ‘voluntarily’, allow their

biometrics and demographic information to be stored by the State

and private operators and then used for a process termed

‘authentication’. According to them, by the very scheme of the

Act and the way it operates, it has propensity to cause ‘civil

death’ of an individual by simply switching of Aadhaar of that

person. It is the submission of the petitioners that the

Constitution balances rights of individuals against State interest.

The Aadhaar completely upsets this balance and skews the

relationship between the citizen and the State enabling the State

to totally dominate the individual.

59) The challenge is directed at the constitutional validity of the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 87 of 567

following facets of Aadhaar:

(i) The Aadhaar programme that operated between January

28, 2009 until the bringing into force of the Aadhaar Act on

July 12, 2016.

(ii) The Aadhaar Act (and alternatively certain provisions of

that Act).

(iii) Elements of the Aadhaar project or programme that

continues to operate, though not within the cover of the

Aadhaar Act.

(iv) Specific Regulations framed under the Aadhaar Act,

illustratively the Aadhaar (Authentication) Regulations,

2016.

(v) A set of subordinate legislation in the form of statutory

rules/regulations including the Money Laundering

(Amendment) Rules, 2017.

(vi) All notifications (nearly 139) issued under Section 7 of the

Aadhaar Act (assuming the Act is upheld) insofar as they

make Aadhaar mandatory for availing certain

benefits/services/subsidies, including PDS, MGNREGA

and social security pension.

(vii) Actions on the part of the authorities to make Aadhaar

mandatory even where not covered by
Section 7
, inter

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 88 of 567

alia: Actions by CBSE, NEET, JEE and UGC requirements

for scholarship.

(viii) Specifically, actions on part of the Government mandating

linking of mobile phones and Aadhaar vide DoT circular

dated March 23, 2017.

(ix)
Section 139AA
of the Income Tax Act, 1961 insofar as it

violates
Article 21
by mandating linking Aadhaar to PAN

and requiring Aadhaar linkage for filing returns.

60) Apart from the declaratory reliefs regarding ultra vires and

certiorari to quash the provisions/actions enumerated above,

there are certain other reliefs that are also sought, including:

(i) Suitable declarations regarding the physical autonomy of a

person over her own body qua the Indian State.

(ii) Mandatory directions requiring the respondents to give an

option to persons who are enrolled with the Aadhaar

programme to opt out and to delete the data with suitable

certification for compliance.

(iii) Mandatory directions to all concerned authorities that

should the Aadhaar Act, etc. be upheld, nevertheless,

every person must be entitled to avail services, benefits

etc. through alternative means of identification.

Negatively, nothing can be withheld from a citizen merely

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 89 of 567

because he/she does not have an Aadhaar Card or does

not wish to use their Aadhaar Card.

(iv) Mandatory directions consistent with the fundamental right

to privacy and the right of a citizen to be let alone that no

electronic trial or record of his/her authentication be

maintained.

61) On the aforesaid premise, the petitioners point out following

heads of challenge:

Surveillance:

62) The project creates the architecture for pervasive surveillance

and unless the project is stopped, it will lead to an Orwellian State

where every move of the citizen is constantly tracked and

recorded by the State. The architecture of the project comprises

a Central Identities Data Repository (CIDR) which stores and

maintains authentication transaction data. The authentication

record comprises the time of authentication and the identity of the

requesting entity. Based on this architecture it is possible for the

State to track down the location of the person seeking

authentication. Since the requesting entity is also identified, the

activity that the citizen is engaging in is also known.

Violation of Fundamental Right to Privacy:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 90 of 567

63) The fundamental right to privacy is breached by the Aadhaar

project and the Aadhaar Act in numerous ways. Following are the

illustrations given by the petitioners:

(a) Between 2009-10 and July 2016 the project violated the

right to privacy with respect to personal demographic as well as

biometric information collected, stored and shared as there was

no law authorising these actions.

(b) During both the pre-Act and post-Act periods, the project

continues to violate the right to privacy by requiring individuals to

part with demographic as well as biometric information to private

enrolling agencies.

(c) By enabling private entities to use the Aadhaar

authentication platform, the citizen’s right to informational privacy

is violated inasmuch as the citizen is compelled to ‘report’ his/her

actions to the State.

(d) Even where a person is availing of a subsidy, benefit or

service from the State, mandatory authentication through the

Aadhaar platform (without an option to the citizen to use an

alternative mode of identification) violates the right to

informational privacy.

(e) With Aadhaar being made compulsory for holding a bank

account, operating a cell phone, having a valid PAN, holding

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 91 of 567

mutual funds, securing admission to school, taking a board

examination, etc. the citizen has no option but to obtain Aadhaar.

Compelling the citizen to part with biometric information violates

individual autonomy and dignity.

(f) In a digital society an individual has the right to protect

himself by controlling the dissemination of personal information,

including biometric information. Compelling an individual to

establish his identity by planting her biometric at multiple points of

service violates privacy involving the person.

(g) The seeding of Aadhaar in distinct databases enables the

content of information about an individual that is stored in

different silos to be aggregated. This enables the State to build

complete profiles of individuals violating privacy through the

convergence of data.

Limited Government:

64) A fundamental feature of the Constitution is the sovereignty of the

people with limited Government authority. The Constitution limits

governmental authority in various ways, amongst them

Fundamental Rights, the distribution of powers amongst organs

of the State and the ultimate check by way of judicial review. The

Aadhaar project is destructive of the limited Government. The

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Constitution is not about the power of the State, but about the

limits on the power of the State. Post Aadhaar, the State will

completely dominate the citizen and alter the relationship

between citizen and the State. The features of a totalitarian state

is seen from:

(a) A person cannot conduct routine activities such as operating

a bank account, holding an investment in mutual funds, receiving

government pension, receiving scholarship, receiving food

rations, operating a mobile phone without the State knowing

about these activities.

(b) The State can build a profile of the individual based on the

trial of authentication from which the nature of the citizen’s activity

can be determined.

(c) By disabling Aadhaar the State can cause civil death of the

person.

(d) By making Aadhaar compulsory for other activities such as

air travel, rail travel, directorship in companies, services and

benefits extended by the State Governments and Municipal

Corporations, etc. there will be virtually no zone of activity left

where the citizen is not under the gaze of the State. This will

have a chilling effect on the citizen.

(e) In such a society, there is little or no personal autonomy.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 93 of 567

The State is pervasive, and dignity of the individual stands

extinguished.

(f) This is an inversion of the accountability in the Right to

Information age: instead of the State being transparent to the

citizen, it is the citizen who is rendered transparent to the State.

Impugned Act illegally passed as a ‘Money Bill’:

65) The Bill No. 47 of 2016 introduced in the Lok Sabha and which

upon passage became the impugned Act was not a Money Bill in

terms of
Article 110
of the Constitution of India. Even though the

object and purpose of the impugned legislation states that it is to

be used for the delivery of subsidies, benefits and services,

expenditure for which is incurred from the Consolidated Fund of

India, the scope of the impugned Act is far beyond what is

envisaged under
Article 110.
Inasmuch as the impugned Act has

not followed the constitutional procedure mandated for the

passage of a law by disguising the statute as a ‘Money Bill’, there

is no valid legislative process that has been followed in this case.

The legislative process being colourable and since judicial review

extends wherever Part III rights are violated, the Aadhaar Act is

liable to be struck down.

Procedure followed violates
Articles 14
and
of the Constitution:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 94 of 567

66) The procedure adopted by the respondents, both pre-Act and

post-Act, is arbitrary and in violation of
Articles 14
and
of the

Constitution because:

(a) There is no informed consent at the time of enrolment.

Individuals are not told about crucial aspects such as potential

misuse of the information, the commercial value of the

information, the storage of information in a centralised database,

that the information supplied could be used against the individual

in criminal proceedings pursuant to a court order, there is no opt-

out option, the entire enrolment process is conducted by private

entities without any governmental supervision, etc.

(b) UIDAI has no direct relationship with the enrolling agency

which collects sensitive personal information (biometric and

demographic).

(c) The data collected and uploaded in to the CIDR is not

verified by any Government official designated by the UIDAI. The

data collected and stored lacks integrity.

(d) The procedure at the stage of enrolment and authentication

enables the enrolling agency as well as the ‘requesting entity’ to

capture, store and misuse/use the biometric as well as

demographic information without the UIDAI having any control

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 95 of 567

over such misuse/use.

Unreliability of Biometrics and Exclusion:

67) The foundation of the project, i.e. biometrics, is an unreliable and

untested technology. Moreover, biometric exceptions severely

erode reliability. The biometric authentication system works on a

probabilistic model. Consequently, entitlements are reduced from

certainty to a chance delivery where the biometrics match.

Across the country several persons are losing out on their

entitlements, for say food rations, because of a biometric

mismatch resulting in them being excluded from various welfare

schemes. The project is not an ‘identity’ project but an

‘identification’ exercise. Unless the biometrics work, a person in

flesh and blood, does not exist for the State.

Illegal Object:

68) It is submitted before us that the objective of creating a single

pervasive identification over time is itself illegal. There are

several facets to the illegality and amongst them is the very

negation of an individual citizen’s freedom to identify through

different means. The coercive foundation of the impugned Act is

in substance an illegal objective that renders the statute ultra

vires
Article 14
of the Constitution of India.

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Democracy, Identity and Choice:

69) A citizen or resident in a democratic society has a choice to

identify himself/herself through different modes in the course of

his/her interactions generally in society as well as his/her

interactions with the State. Mandating identification by only one

highly intrusive mode is excessive, disproportionate and violates

Articles 14
, 19
and
21.

Children:

70) As per the petitioners, there is no justification to include children

in the Aadhaar programme for various reasons.

71) It may also be recorded at this juncture itself that insofar as the

Aadhaar Act is concerned, following provisions thereof are

specifically attacked as unconstitutional:

(i)
Section 2(c)
and
2(d)
- authentication and authentication

record, read with
Section 32

(ii)
Section 2(h)
read with
Section 10
of CIDR

(iii)
Section 2(l)
read with
Regulation 23
of the Aadhaar

(Enrolment and Updates) Regulation - ‘enrolling agency’

(iv)
Section 2(v)
- ‘resident’

(v)
Section 3
– Aadhaar Number

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(vi)
Section 5
– Special treatment to children

(vii)
Section 6
– Update of information

(viii)
Section 7

(ix)
Section 8

(x)
Section 9

(xi) Chapter IV –
Sections 11
to
(xii)
Sections 23
and
– excessive delegation

(xiii)
Section 23(2)(g)
read with Chapter VI & VII – Regulations

27 to 32 of the Aadhaar (Enrolment and Update) Regulations,
(xiv)
Section 29

(xv)
Section 33

(xvi)

Section 47

(xvii)

Section 48
– Power of Central Government to supersede

UIDAI

(xviii)
Section 57

(xix)

Section 59

Some Introductory Remarks:

72) Before proceeding further, it would be necessary to state here the

approach which we have adopted in dealing with various issues

that are raised in these petitions. That may help in understanding

the manner in which the matter is dealt with. This necessitates

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 98 of 567

some introductory remarks:

(i) We may remark at this stage itself that many of the heads of

challenge which are taken note of above are overlapping and,

therefore, discussion on one aspect may provide substantial

answers to the arguments advanced under the other head of

challenge as well. Our endeavour, therefore, would be to eschew

the repetitive discussion. However, our anxiety to bring clarity

and also in order to have continuity of thought while discussing a

particular head, may have led to some repetitions at different

places. In any case, we would be dealing with the various heads

of challenge, one by one, so as to cover the entire spectrum.

(ii) In order to have a smooth flow of discussion, we are going

to formulate the questions which arise in all these petitions and

then decide those issues. Since, number of advocates 7 appeared

on both sides, many of the arguments addressed by them were

overlapping and repetitive. In this scenario, we deem it proper to

collate the arguments of all the counsel and present the same

while undertaking the discussion on each of the issues. Thus, in

the process, we would not be referring to each counsel and her

arguments. We may, however, intend to place on record that all

7 S/Shri Kapil Sibal, Gopal Subramaniam, P. Chidambaram, Shyam Divan, K.V. Viswanathan,
Neeraj Kishan Kaul, C.U. Singh, Anand Grover, Sanjay R. Hegde, Arvind P. Datar, V. Giri,
Rakesh Dwivedi, Jayant Bhushan, Sajan Poovayya, P.V. Surendra Nath, Senior Advocates, K.K.
Venugopal, Attorney General for India, Tushar Mehta, Additional Solicitor General of India,
Gopal Sankaranarayanan and Zoheb Hossain, Advocates.

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the counsel on both sides had taken the advocacy to its highest

level by presenting all possible nuances of the complex issues

involved. In the process, plethora of literature on such issues,

including the law prevailing across the Globe was cited. We,

therefore, place on record our appreciation of the sublime nature

of lawyering in this case.

(iii) As pointed out above, many number of foreign judgments

were cited during arguments. The history of this Court reflects

that this Court has liberally accepted the good practices, rules of

interpretation and norms of constitutional courts of other

jurisdictions. In fact, in drafting Indian Constitution itself, the

framing fathers had studied various foreign models and adopted

provisions from different Constitutions after deep reflection.

Constitutional influences of system prevailing in some of the

countries on Indian Constitution can be summarised as under:

From UK - Parliamentary Type of Government
- Cabinet System of Ministers
- Bicameral Parliament
- Lower House more powerful
- Council of Minsters responsible to Lower
House
From US - Written Constitution

- Executive head of State known as President
and his being the Supreme Commander of
the Armed Forces

- Vice-President as the ex-officio Chairman of
Rajya Sabha

- Bill of Rights

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- Supreme Court

- Provision of States

- Independence of Judiciary and judicial
review

- Preamble

- Removal of Supreme Court and High Court
Judges
From USSR - Fundamental Duties

- Five Year Plan
From Australia - Concurrent List

- Language of the preamble

- Provision regarding trade, commerce and
intercourse
From Japan - Law on which the Supreme Court function
From Weimar - Suspension of Fundamental Rights during
Constitution of the emergency
Germany
From Canada - Scheme of federation with a strong centre

- Distribution of powers between the centre
and the states and placing residuary powers
with the centre
From Ireland - Concept of Directive Principles of States
Policy

- Method of election of President

- Nomination of members in the Rajya Sabha
by the President

It was, therefore, but natural to find out the manner in which

particular provisions have been interpreted by the constitutional

courts of the aforesaid countries. Case law of this Court would

reflect this for interpreting the provisions relating to ‘Inter-State

Trade, Commerce & Intercourse’. The case law of the Australian

High Court is liberally referred as this Chapter is influenced by the

provisions contained in the Australian Constitution. Likewise, for

interpreting provisions of Part IX of the Constitution on ‘Relations

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between the Union and the States’ where Canadian model is

followed, the judgments of Canadian Supreme Court have been

cited by this Court from time to time. Influence of U.S.

Constitutionalism, tempered by the wish to preserve India’s own

characteristics, while interpreting chapter relating to fundamental

rights as well as power of judicial review is also discernible. A

critical analysis of the various judgments of this Court, where

foreign precedents are cited8, formulates four typologies of use,

namely:

(a) Where the court relies on foreign precedents for guidance

on general constitutional principles and when necessary to;

(b) Where the court frames the issue posed for adjudication

and/or to formulate evaluative test and frameworks;

(c) To distinguish the country’s context from the foreign one 9;

(d) To ‘read’ in the Constitution implied or unenumerated

rights10.

It can be said that though this Court has been liberally

relying upon the judgments of the constitutional courts of other

countries, particularly when it comes to human rights discourse,

at the same time, in certain situations, note of caution is also

8 Thiruvengadam, The Use of Foreign Law in Constitutional Cases in
India and Singapore (2010)
9 Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr.
, 1959 Supp (1)
SCR 528
10 Romesh Thappar v. State of Madras, 1950 SCR 594

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 102 of 567

added to give a message that the judgment of other jurisdiction

cannot be relied blindly and it would depend as to whether a

particular judgment will fit in Indian context or not. As a matter of

fact, in Basheshar Nath, the Court discussed the doctrine of

waiver in force in the United States and rejected it firmly stating

that:

:...the doctrine of waiver enunciated by some American
Judges in construing the American Constitution cannot be
introduced in our Constitution...We are not for the moment
convinced that this theory has any relevancy in construing
the fundamental rights conferred by Part III of the
Constitution.”

On the contrary, in Romesh Thappar, the Court completely

based its decision to strike down a law restricting the free

circulation of newspapers on two US precedents, Ex parte

Jackson11 and Lovell v. City of Griffin12, and affirmed that the

protection of freedom of expression in India follows the maxim of

Madison that the Court transposed from its quotation in Near v.

Minnesota13, according to which ‘it is better to leave a few of its

noxious branches to their luxuriant growth, than, by pruning them

away, to injure the vigour of those yielding the proper fruits’.

Likewise, the role of foreign precedents in a majority opinion is

confirmed in the decision of His Holiness Kesavananda Bharati

11 Ex Parte Jackson, 96 US 727 (1878).

12 Lovell v. City of Griffin, 303 US 444 (1938).
13 Near v. Minnesota, 282 US 607 (1931) 717-18.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 103 of 567

Sripadagalvaru which clarifies Parliament’s power to amend the

Constitution. At the same time, looking to the use of foreign

precedents in this judgment, Justice S.M. Sikri (as His Lordship

then was), dealing with the interpretation of
Article 368
of the

Constitution, first of all, highlighted that:

“No other Constitution in the world is like ours. No other
Constitution combines under its wings such diverse
peoples, numbering now more than 550 millions [sic], with
different languages and religions and in different stages of
economic development, into one nation, and no other
nation is faced with such vast socio-economic problems.

After this premise, however, His Lordship accepts, in order

to define what an ‘amendment’ is according to the Indian

Constitution, the reasoning of Lord Greene in Bidie v. General

Accident, Fire and Life Assurance Corporation 14 and that of

Justice Holmes in Towne v. Eisner15, which affirm that to

understand a word it is necessary to understand the context in

which it is inserted. To strengthen this, James v. Commonwealth

of Australia16 is also referred to.

We have stated the trend in brief with a purpose. Number

of judgments of U.K. Courts, German Supreme Court, European

Commission of Human Rights (ECHR), U.S. Supreme Court etc.

were cited. However, there is no similarity in approach by these

14 Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995, 998.
15 Towne v. Eisner, 245 US 418.

16 James v. Commonwealth of Australia, (1936) AC 578.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 104 of 567

Courts in deciding a particular issue by applying different

principles, particularly when it comes to the issues of data

protection and privacy. In this backdrop, it becomes necessary,

while referring to these judgments, to keep in mind the ethos,

cultural background and vast socio-economic problems of this

country and on that basis to accept a particular norm, or for that

matter, to formulate a constitutional norm which is relevant in our

context. That is the endeavour which is made by us.

(iv) Many arguments of the petitioners relate to the working of

the system. 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 respondents, on the other hand, have stated on

affidavit that the attempt of the respondents would be to 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. It was clarified that since

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Aadhaar project is an ongoing project, there may be some

glitches in its working and there is a continuous attempt to make

improvements in order to ensure that it becomes foolproof over a

period of time. We have eschewed detailed discussion in respect

of those arguments, which may not have much relevance when

judging the constitutional validity of the Act and the scheme.

However, such arguments of exclusion etc. leading to violation of

Articles 14
and
are dealt with at an appropriate stage. But the

argument based on alleged inaccurate claims of savings by the

Authority/Union of India in respect of certain programmes, like

saving of USD 11 billion per annum due to the Aadhaar project,

as well as savings in the implementation of the MGNREGA

scheme, LPG subsidy, PDS savings need not detain us for long.

Such rebuttals raised by the petitioners may have relevance

insofar as working of the Act is concerned. That by itself cannot

be a ground to invalidate the statute.

(v) As mentioned above, notwithstanding the passions and

emotions evoked on both sides in equal measure, this Court has

adopted a lambent approach while dealing with the issues raised,

having a posture of calmness coupled with objective examination

of the issues on the touchstone of the constitutional provisions.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 106 of 567

We are in the age of constitutional democracy, that too

substantive and liberal democracy. Such a democracy is not

based solely on the rule of people through their representatives

which is known as “formal democracy”. It also has other precepts

like rule of law, human rights, independence of judiciary,

separation of powers, etc. The framers of Indian Constitution

duly recognized the aforesaid precepts of liberal and substantive

democracy with rule of law as an important and fundamental

pillar. At the same time, in the scheme of the Constitution, it is

the judiciary which is assigned the role of upholding rule of law

and protecting the Constitution and democracy.

The essence of rule of law is to preclude arbitrary action.

Dicey, who propounded the rule of law, gave distinct meaning to

this concept and explained that it was based on three kindered

features, which are as follows:

(i) absence of arbitrary powers on the part of authorities;

(ii) equality before law; and

(iii) the Constitution is part of the ordinary law of the land.

There are three aspects of the rule of law, which are as

follows:

(a) A formal aspect which means making the law rule.

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(b) A jurisprudential or doctrinal aspect which is concerned with

the minimal condition for the existence of law in society.

(c) A substantive aspect as per which the rule of law is

concerned with properly balancing between the individual and

society.

When we talk of jurisprudential rule of law, it includes

certain minimum requirements without which a legal system

cannot exist and which distinguished a legal system from an

automatic system where the leader imposes his will on everyone

else. Professor Lon Fuller has described these requirements

collectively as the 'inner morality of law'. In addition to

jurisprudential concept, which is important and an essential

condition for the rule of law, the substantive concept of the rule of

law is equally important and inseparable norm of the rule of law in

real sense. It encompasses the 'right conception' of the rule of

law propounded by Dworkin. It means guaranteeing fundamental

values of morality, justice, and human rights, with a proper

balance between these and the other needs of the society.

Justice Aharon Barak, former Chief Justice of Israel, has lucidly

explained this facet of rule of law in the following manner:

“The rule of law is not merely public order, the rule of law is
social justice based on public order. The law exists to
ensure proper social life. Social life, however, is not a goal
in itself but a means to allow the individual to live in dignity

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and develop himself. The human being and human rights
underlie this substantive perception of the rule of law, with
a proper balance among the different rights and between
human rights and the proper needs of society. The
substantive rule of law “is the rule of proper law, which
balances the needs of society and the individual”. This is
the rule of law that strikes a balance between society's
need for political independence, social equality, economic
development, and internal order, on the one hand, and the
needs of the individual, his personal liberty, and his human
dignity on the other. The Judge must protect this rich
concept of the rule of law.”

The 'rule of law', which is a fine sonorous phrase, is

dynamic and ever expanding and can be put alongside the

brotherhood of man, human rights and human dignity. About the

modern rule of law, Professor Garner observed:

“The concept in its modern dress meets a need that has
been felt throughout the history of civilization, law is not
sufficient in itself and it must serve some purpose. Man is
a social animal, but to live in society he has had to fashion
for himself and in his own interest the law and other
instruments of government, and as a consequence those
must to some extent limit his personal liberties. The
problem is how to control those instruments of government
in accordance with the Rule of Law and in the interest of
the governed.”

Likewise, the basic spirit of our Constitution is to provide

each and every person of the nation equal opportunity to grow as

a human being, irrespective of race, caste, religion, community

and social status. Granville Austin while analyzing the functioning

of Indian Constitution in first 50 years has described three

distinguished strands of Indian Constitution: (i) protecting national

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unity and integrity, (ii) establishing the institution and spirit of

democracy; and (iii) fostering social reforms. The strands are

mutually dependent and inextricably intertwined in what he

elegantly describes as a 'seamless web'. And there cannot be

social reforms till it is ensured that each and every citizen of this

country is able to exploit his/her potentials to the maximum. The

Constitution, although drafted by the Constituent Assembly, was

meant for the people of India and that is why it is given by the

people to themselves as expressed in the opening words “We the

People...”. What is the most important gift to the common person

given by this Constitution is “fundamental rights” which may be

called human rights as well.

Speaking for the vision of our founding fathers, in
State of

Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.
17, this Court

speaking through Justice Krishna Iyer observed:

“The social philosophy of the Constitution shapes creative
judicial vision and orientation. Our nation has, as its
dynamic doctrine, economic democracy sans which
political democracy is chimerical. We say so because our
Constitution, in Parts III and IV and elsewhere, ensouls
such a value system, and the debate in this case puts
precisely this soul in peril….Our thesis is that the dialectics
of social justice should not be missed if the synthesis of
Parts III and Part IV is to influence State action and court
pronouncements. Constitutional problems cannot be
studied in a socio-economic vacuum, since socio-cultural
changes are the source of the new values, and sloughing
off old legal thought is part of the process the new equity-

17 (1977) 4 SCC 471

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loaded legality. A judge is a social scientist in his role as
constitutional invigilator and fails functionally if he forgets
this dimension in his complex duties.”

In
Dattatraya Govind Mahajan v. State of Maharashtra18
the

spirit of our Constitution was explained thus:

“Our Constitution is a tryst with destiny, preamble with
lucent solemnity in the words ‘Justice – social, economic
and political.’ The three great branches of Government, as
creatures of the Constitution, must remember this promise
in their fundamental role and forget it at their peril, for to do
so will be a betrayal of chose high values and goals which
this nation set for itself in its objective Resolution and
whose elaborate summation appears in Part IV of the
Paramount Parchment. The history of our country’s
struggle for independence was the story of a battle
between the forces of socio-economic exploitation and the
masses of deprived people of varying degrees and the
Constitution sets the new sights of the nation…..Once we
grasp the dharma of the Constitution, the new orientation of
the karma of adjudication becomes clear. Our founding
fathers, aware of our social realities, forged our fighting
faith and integrating justice in its social, economic and
political aspects. While contemplating the meaning of the
Articles of the Organic Law, the Supreme Court shall not
disown Social Justice.”

In
National Human Rights Commission v. State of

Arunachal Pradesh19
, the Supreme Court explained it again, as

under:

“We are a country governed by the Rule of Law. Our
Constitution confers certain rights on every human being
and certain other rights on citizens. Every person is entitled
to equality before the law and equal protection of the laws.”

Looking the matter from this angle, when the judiciary is

assigned the role of upholding the rule of law, the first function of

18 (1977) 2 SCC 548
19 (1996) 1 SCC 742

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the judiciary is to protect the democracy as well as the

Constitution. At the same time, second role of the Court, which is

equally important, is to bridge the gap between the law and the

society. In the process of undertaking this role, a third role, which

is of equal significance also springs up. Judiciary is also to

ensure that social and economic justice is meted out to the

deserving lot by affirmative action of the State. Our attempt has

been to strive the balancing of competing Constitutional norms.

The complex issues are dealt with keeping in view this role of the

Supreme Court as assigned by the Constitution; albeit within the

constitutional norms.

Scope of Judicial Review:

73) The aforesaid discussion leads us to pick up and discuss another

strand viz. the scope of judicial review in such matters.

74) Judicial review means the Supremacy of law. It is the power of

the court to review the actions of the Legislature, the Executive

and the Judiciary itself and to scrutinize the validity of any law or

action. It has emerged as one of the most effective instruments of

protecting and preserving the cherished freedoms in a

constitutional democracy and upholding principles such as

separation of powers and rule of law. The Judiciary, through

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judicial review, prevents the decisions of other branches from

impinging on the constitutional values. The fundamental nature

of the Constitution is that of a limiting document, it curtails the

powers of majoritarianism from hijacking the State. The power of

review is the shield which is placed in the hands of the most

judiciaries of constitutional democracies to enable the protection

of the supreme document.

75) In
Binoy Viswam v. Union of India & Ors.20
, scope of judicial

review of legislative Act was described in the following manner:

“76. Under the Constitution, Supreme Court as well as High
Courts are vested with the power of judicial review of not
only administrative acts of the executive but legislative
enactments passed by the legislature as well. This power is
given to the High Courts under
Article 226
of the
Constitution and to the Supreme Court under
Article 32
as
well as
Article 136
of the Constitution. At the same time, the
parameters on which the power of judicial review of
administrative act is to be undertaken are different from the
parameters on which validity of legislative enactment is to
be examined. No doubt, in exercises of its power of judicial
review of legislative action, the Supreme Court, or for that
matter, the High Courts can declare law passed by
Parliament or the State Legislature as invalid. However, the
power to strike down primary legislation enacted by the
Union or the State Legislatures is on limited grounds.
Courts can strike down legislation either on the basis that it
falls foul of federal distribution of powers or that it
contravenes fundamental rights or other constitutional
rights/provisions of the Constitution of India. No doubt,
since the Supreme Court and the High Courts are treated
as the ultimate arbiter in all matters involving interpretation
of the Constitution, it is the courts which have the final say
on questions relating to rights and whether such a right is
violated or not. The basis of the aforesaid statement lies in

20 (2017) 7 SCC 59

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Article 13(2)
of the Constitution which proscribes the State
from making “any law which takes away or abridges the
right conferred by Part III”, enshrining fundamental rights. It
categorically states that any law made in contravention
thereof, to the extent of the contravention, be void.

77. We can also take note of
Article 372
of the Constitution
at this stage which applies to pre-constitutional laws.
Article
372(1)
reads as under:

“372. Continuance in force of existing laws and
their adaptation.—(1) Notwithstanding the repeal by
this Constitution of the enactments referred to in

Article 395
but subject to the other provisions of this
Constitution, all the laws in force in the territory of
India immediately before the commencement of this
Constitution shall continue in force therein until
altered or repealed or amended by a competent
legislature or other competent authority.”

In the context of judicial review of legislation, this provision
gives an indication that all laws enforced prior to the
commencement of the Constitution can be tested for
compliance with the provisions of the Constitution by
courts. Such a power is recognised by this Court in
Union
of India v. SICOM Ltd. In
that judgment, it was also held that
since the term “laws”, as per
Article 372
, includes common
law the power of judicial review of legislation, which is a
part of common law applicable in India before the
Constitution came into force, would continue to vest in the
Indian courts.

78. …These contours of the judicial review are spelled out
in the clear terms in Rakesh Kohli, and particularly in the
following paragraphs: (SCC pp. 321-22 & 325-27, paras
16-17, 26-28 & 30)

“16. The statute enacted by Parliament or a State
Legislature cannot be declared unconstitutional
lightly. The court must be able to hold beyond any iota
of doubt that the violation of the constitutional
provisions was so glaring that the legislative provision
under challenge cannot stand. Sans flagrant violation
of the constitutional provisions, the law made by
Parliament or a State Legislature is not declared bad.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 114 of 567

17. This Court has repeatedly stated that legislative
enactment can be struck down by court only on two
grounds, namely (i) that the appropriate legislature
does not have the competence to make the law, and

(ii) that it does not (sic) take away or abridge any of
the fundamental rights enumerated in Part III of the
Constitution or any other constitutional provisions. In
McDowell and Co. while dealing with the challenge to
an enactment based on
Article 14
, this Court stated in
para 43 of the Report as follows: (SCC pp. 737-38)

‘43. … A law made by Parliament or the legislature
can be struck down by courts on two grounds and two
grounds alone viz. (1) lack of legislative competence,
and (2) violation of any of the fundamental rights
guaranteed in Part III of the Constitution or of any
other constitutional provision. There is no third
ground. … if an enactment is challenged as violative
of
Article 14
, it can be struck down only if it is found
that it is violative of the equality clause/equal
protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the
fundamental rights guaranteed by sub-clauses (a) to

(g) of
Article 19(1)
, it can be struck down only if it is
found not saved by any of the clauses (2) to (6) of

Article 19
and so on. No enactment can be struck
down by just saying that it is arbitrary or
unreasonable. Some or the other constitutional
infirmity has to be found before invalidating an Act. An
enactment cannot be struck down on the ground that
court thinks it unjustified. Parliament and the
legislatures, composed as they are of the
representatives of the people, are supposed to know
and be aware of the needs of the people and what is
good and bad for them. The court cannot sit in
judgment over their wisdom.’

xx xx xx

26. In Mohd. Hanif Quareshi, the Constitution Bench
further observed that there was always a presumption
in favour of constitutionality of an enactment and the
burden is upon him, who attacks it, to show that there
has been a clear violation of the constitutional
principles. It stated in para 15 of the Report as under:

(AIR pp. 740-41)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 115 of 567

‘15. … The courts, it is accepted, must presume that
the legislature understands and correctly appreciates
the needs of its own people, that its laws are directed
to problems made manifest by experience and that its
discriminations are based on adequate grounds. It
must be borne in mind that the legislature is free to
recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed
to be the clearest and finally that in order to sustain
the presumption of constitutionality the court may
take into consideration matters of common
knowledge, matters of common report, the history of
the times and may assume every state of facts which
can be conceived existing at the time of legislation.’

27. The above legal position has been reiterated by a
Constitution Bench of this Court in
Mahant Moti Das
v. S.P. Sahi
.

28.
In
Hamdard Dawakhana v. Union of India
, inter
alia, while referring to the earlier two decisions,
namely, Bengal Immunity Co. Ltd. and Mahant Moti
Das, it was observed in para 8 of the Report as
follows: (
Hamdard Dawakhana
case, AIR p. 559)

‘8. Therefore, when the constitutionality of an
enactment is challenged on the ground of violation of
any of the articles in Part III of the Constitution, the
ascertainment of its true nature and character
becomes necessary i.e. its subject-matter, the area in
which it is intended to operate, its purport and intent
have to be determined.

In order to do so it is
legitimate to take into consideration all the factors
such as history of the legislation, the purpose thereof,
the surrounding circumstances and conditions, the
mischief which it intended to suppress, the remedy for
the disease which the legislature resolved to cure and
the true reason for the remedy….’

In Hamdard Dawakhana, the Court also followed the
statement of law in Mahant Moti Das and the two
earlier decisions, namely,
Charanjit Lal Chowdhury v.
Union of India
and
State of Bombay v. F.N. Balsara

and reiterated the principle that presumption was
always in favour of constitutionality of an enactment.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 116 of 567

xx xx xx

30. A well-known principle that in the field of taxation,
the legislature enjoys a greater latitude for
classification, has been noted by this Court in a long
line of cases. Some of these decisions are Steelworth
Ltd. v. State of Assam [Steelworth Ltd. v. State of
Assam, 1962 Supp (2) SCR 589], Gopal Narain v.
State of U.P. [Gopal Narain v. State of U.P., AIR 1964
SC 370], Ganga Sugar Corpn. Ltd. v. State of U.P.
[Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1
SCC 223 : 1980 SCC (Tax) 90], R.K. Garg v. Union of
India [R.K. Garg v. Union of India, (1981) 4 SCC 675 :

1982 SCC (Tax) 30] and State of W.B. v. E.I.T.A.
India Ltd. [State of W.B. v. E.I.T.A. India Ltd., (2003) 5
SCC 239]”
(emphasis in original)

xx xx xx

83. It is, thus, clear that in exercise of power of judicial
review, the Indian courts are invested with powers to strike
down primary legislation enacted by Parliament or the
State Legislatures. However, while undertaking this
exercise of judicial review, the same is to be done at three
levels. In the first stage, the Court would examine as to
whether impugned provision in a legislation is compatible
with the fundamental rights or the constitutional provisions
(substantive judicial review) or it falls foul of the federal
distribution of powers (procedural judicial review). If it is not
found to be so, no further exercise is needed as challenge
would fail. On the other hand, if it is found that legislature
lacks competence as the subject legislated was not within
the powers assigned in the List in Schedule VII, no further
enquiry is needed and such a law is to be declared as ultra
vires the Constitution. However, while undertaking
substantive judicial review, if it is found that the impugned
provision appears to be violative of fundamental rights or
other constitutional rights, the Court reaches the second
stage of review. At this second phase of enquiry, the Court
is supposed to undertake the exercise as to whether the
impugned provision can still be saved by reading it down
so as to bring it in conformity with the constitutional
provisions. If that is not achievable then the enquiry enters
the third stage. If the offending portion of the statute is
severable, it is severed and the Court strikes down the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 117 of 567

impugned provision declaring the same as
unconstitutional.”

76) In support of the aforesaid proposition that an Act of the

Parliament can be invalidated only on the aforesaid two grounds,

passages from various judgments were extracted 21. The Court

also noted the observations from State of A.P. & Ors. v.

MCDOWELL & Co. & Ors.22 wherein it was held that apart from

the aforesaid two grounds, no third ground is available to validate

any piece of legislation.
In the process, it was further noted that

in
Rajbala & Ors. v. State of Haryana & Ors.23
(which followed

MCDOWELL & Co. case), the Court held that a legislation cannot

be declared unconstitutional on the ground that it is ‘arbitrary’

inasmuch as examining as to whether a particular Act is arbitrary

or not implies a value judgment and courts do not examine the

wisdom of legislative choices, and, therefore, cannot undertake

this exercise.

77) The issue whether law can be declared unconstitutional on the

ground of arbitrariness has received the attention of this Court in

a Constitution Bench judgment in the case of
Shayara Bano v.

Union of India & Ors.24
.

R.F. Nariman and U.U. Lalit, JJ.
21 State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312;
Ashoka Kumar Thakur v. Union of India
,
(2008) 6 SCC 1
22 (1996) 3 SCC 709
23 (2016) 2 SCC 445
24 (2017) 9 SCC 1

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 118 of 567

discredited the ratio of the aforesaid judgments wherein the Court

had held that a law cannot be declared unconstitutional on the

ground that it is arbitrary.

The Judges pointed out the larger

Bench judgment in the case of
Dr. K.R. Lakshmanan v. State of

T.N. & Anr.25
and
Maneka Gandhi v. Union of India & Anr.26
where

‘manifest arbitrariness’ is recognised as the third ground on which

the legislative Act can be invalidated. Following discussion in this

behalf is worthy of note:

“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of
law, would violate
Article 14.
Further, there is an apparent
contradiction in the three-Judge Bench decision in

McDowell [State of A.P. v. McDowell and Co.
, (1996) 3
SCC 709] when it is said that a constitutional challenge can
succeed on the ground that a law is “disproportionate,
excessive or unreasonable”, yet such challenge would fail
on the very ground of the law being “unreasonable,
unnecessary or unwarranted”. The arbitrariness doctrine
when applied to legislation obviously would not involve the
latter challenge but would only involve a law being
disproportionate, excessive or otherwise being manifestly
unreasonable. All the aforesaid grounds, therefore, do not
seek to differentiate between State action in its various
forms, all of which are interdicted if they fall foul of the
fundamental rights guaranteed to persons and citizens in
Part III of the Constitution.

88. We only need to point out that even after
McDowell
[State of A.P. v. McDowell and Co.
, (1996) 3 SCC 709] ,
this Court has in fact negated statutory law on the ground
of it being arbitrary and therefore violative of
Article 14
of
the Constitution of India.
In Malpe Vishwanath Acharya v.

State of Maharashtra [Malpe Vishwanath Acharya v. State
of Maharashtra
, (1998) 2 SCC 1] , this Court held that after
passage of time, a law can become arbitrary, and,
25 (1996) 2 SCC 226
26 (1978) 1 SCC 248

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 119 of 567

therefore, the freezing of rents at a 1940 market value
under the Bombay Rent Act would be arbitrary and violative
of
Article 14
of the Constitution of India (see paras 8 to 15
and 31).

xx xx xx

99. However, in
State of Bihar v. Bihar Distillery Ltd. [State
of Bihar
v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at
para 22, in
State of M.P. v. Rakesh Kohli [State of M.P.
v.
Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ)
481], SCC at paras 17 to 19, in Rajbala v. State of Haryana
[Rajbala v. State of Haryana, (2016) 2 SCC 445], SCC at
paras 53 to 65 and in Binoy Viswam v. Union of India
[Binoy Viswam v. Union of India, (2017) 7 SCC 59], SCC at
paras 80 to 82,
McDowell [State of A.P. v. McDowell and
Co.
, (1996) 3 SCC 709] was read as being an absolute bar
to the use of “arbitrariness” as a tool to strike down
legislation under
Article 14.

As has been noted by us earlier
in this judgment,
McDowell [State of A.P. v. McDowell and
Co.
, (1996) 3 SCC 709] itself is per incuriam, not having
noticed several judgments of Benches of equal or higher
strength, its reasoning even otherwise being flawed.

The
judgments, following
McDowell [State of A.P. v. McDowell
and Co.
, (1996) 3 SCC 709] are, therefore, no longer good
law.”

78) The historical development of the doctrine of arbitrariness has

been noticed by the said Judges in Shayara Bano in detail. It

would be suffice to reproduce paragraphs 67 to 69 of
the said

judgment
as the discussion in these paras provide a sufficient

guide as to how a doctrine of arbitrariness is to be applied while

adjudging the constitutional validity of a legislation.

“67. We now come to the development of the doctrine of
arbitrariness and its application to State action as a distinct
doctrine on which State action may be struck down as
being violative of the rule of law contained in
Article 14.

In a
significant passage, Bhagwati, J., in
E.P. Royappa v. State
of T.N.
stated: (SCC p. 38, para 85)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 120 of 567

“85. The last two grounds of challenge may be taken
up together for consideration. Though we have
formulated the third ground of challenge as a distinct
and separate ground, it is really in substance and
effect merely an aspect of the second ground based
on violation of
Articles 14
and
16.

Article 16
embodies
the fundamental guarantee that there shall be
equality of opportunity for all citizens in matters
relating to employment or appointment to any office
under the State. Though enacted as a distinct and
independent fundamental right because of its great
importance as a principle ensuring equality of
opportunity in public employment which is so vital to
the building up of the new classless egalitarian
society envisaged in the Constitution,
Article 16
is
only an instance of the application of the concept of
equality enshrined in
Article 14.
In other words,
Article
is the genus while
Article 16
is a species.
Article
gives effect to the doctrine of equality in all matters
relating to public employment. The basic principle
which, therefore, informs both
Articles 14
and
is
equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of
Bose, J., “a way of life”, and it must not be subjected
to a narrow pedantic or lexicographic approach. We
cannot countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be
to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it
cannot be “cribbed, cabined and confined” within
traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and
constitutional law and is therefore violative of
Article
, and if it effects any matter relating to public
employment, it is also violative of
Article 16.

Articles
and
strike at arbitrariness in State action and
ensure fairness and equality of treatment. They
require that State action must be based on valid
relevant principles applicable alike to all similarly
situate and it must not be guided by any extraneous

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 121 of 567

or irrelevant considerations because that would be
denial of equality. Where the operative reason for
State action, as distinguished from motive inducing
from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area
of permissible considerations, it would amount to
mala fide exercise of power and that is hit by
Articles
and
16.
Mala fide exercise of power and
arbitrariness are different lethal radiations emanating
from the same vice: in fact the latter comprehends the
former. Both are inhibited by
Articles 14
and 16.”
(emphasis supplied)

68. This was further fleshed out in
Maneka Gandhi v.
Union of India
, where, after stating that various
fundamental rights must be read together and must overlap
and fertilise each other, Bhagwati, J., further amplified this
doctrine as follows: (SCC pp. 283-84, para 7)

“The nature and requirement of the procedure under

Article 21

7. Now, the question immediately arises as to what is
the requirement of
Article 14:
what is the content and
reach of the great equalising principle enunciated in
this article? There can be no doubt that it is a
founding faith of the Constitution. It is indeed the pillar
on which rests securely the foundation of our
democratic republic. And, therefore, it must not be
subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its
all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions
and it cannot be imprisoned within traditional and
doctrinaire limits. We must reiterate here what was
pointed out by the majority in
E.P. Royappa v. State
of T.N.
, namely, that: (SCC p. 38, para 85)

‘85. … From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the
rule of law in a republic, while the other, to the whim
and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and
is therefore violative of Article 14….’

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 122 of 567

Article 14
strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or
non-arbitrariness pervades
Article 14
like a brooding
omnipresence and the procedure contemplated by

Article 21
must answer the test of reasonableness in
order to be in conformity with
Article 14.
It must be
“right and just and fair” and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all
and the requirement of
Article 21
would not be
satisfied.”
(emphasis supplied)

69. This was further clarified in
A.L. Kalra v. Project and
Equipment Corpn.
, following Royappa and holding that
arbitrariness is a doctrine distinct from discrimination.

It
was held: (
A.L. Kalra
case, SCC p. 328, para 19)

“19. … It thus appears well settled that
Article 14

strikes at arbitrariness in executive/administrative
action because any action that is arbitrary must
necessarily involve the negation of equality. One need
not confine the denial of equality to a comparative
evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per
se arbitrary itself denies equal of (sic) protection by
law.
The Constitution Bench pertinently observed in
Ajay Hasia case and put the matter beyond
controversy when it said: (SCC p. 741, para 16)

‘16.
… Wherever therefore, there is arbitrariness in
State action whether it be of the legislature or of the
executive or of an “authority” under
Article 12
,
Article
immediately springs into action and strikes down
such State action.’

This view was further elaborated and affirmed in
D.S.
Nakara v. Union of India
.

In
Maneka Gandhi v. Union of
India
it was observed that
Article 14
strikes at arbitrariness
in State action and ensures fairness and equality of
treatment.

It is thus too late in the day to contend that an
executive action shown to be arbitrary is not either judicially
reviewable or within the reach of Article 14.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 123 of 567

The same view was reiterated in
Babita Prasad v. State of
Bihar
, SCC at p. 285, para 31.”

This doctrine is, thus, treated as a facet of both
Articles 14

and
of the Constitution.

79) We would like to record that we have proceeded on the premise

that manifest arbitrariness also furnishes a ground on the basis

on which a legislative enactment can be judicially reviewed. In

the process, even the constitutional validity of
Section 139AA
of

the Income Tax Act, 1961 is given a fresh look on the touchstone

of this norm.

Explaining the doctrine/principles on which the cases are to be
decided:

80) Our discussion up to this stage, which gives a glimpse of the

attack to the Aadhaar scheme and the Aadhaar Act, spearheaded

by the petitioners, would reveal that in the forefront is the right to

privacy and that forms the main pillar on which the edifice of

arguments is substantially constructed 27. Inbuilt in this right to

privacy is the right to live with dignity, which is a postulate of right

to privacy. In the process, discussion leads to the issue of

proportionality, viz. whether measures taken under the Aadhaar

Act satisfy the doctrine of proportionality. We would, therefore,
27 There are few other incidental and ancillary issues raised by the petitioners as well, which we
propose to discuss and deal with after answering these fundamental submissions.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 124 of 567

be well advised to explain these concepts, so that their

application to the fact situation is undertaken with clear and

stable norms in mind.

Contours of Right to Privacy:

81) It stands established, with conclusive determination of the nine

Judge Bench judgment of this Court in K.S. Puttaswamy that right

to privacy is a fundamental right. The majority judgment authored

by Dr. D.Y. Chandrachud, J. (on behalf of three other Judges) and

five concurring judgments of other five Judges have declared, in

no uncertain terms and most authoritatively, right to privacy to be

a fundamental right. This judgment also discusses in detail the

scope and ambit of right to privacy. The relevant passages in this

behalf have been reproduced above while taking note of the

submissions of the learned counsel for the petitioners as well as

respondents. One interesting phenomenon that is discerned from

the respective submissions on either side is that both sides have

placed strong reliance on different passages from this very

judgment to support their respective stances. A close reading of

this judgment brings about the following features:

(i) Privacy has always been a natural right: The correct

position in this behalf has been established by a number of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 125 of 567

judgments starting from Gobind v. State of M.P.28 Various

opinions conclude that:

(a) privacy is a concomitant of the right of the individual to

exercise control over his or her personality.

(b) Privacy is the necessary condition precedent to the

enjoyment of any of the guarantees in Part III.

(c) The fundamental right to privacy would cover at least three

aspects – (i) intrusion with an individual’s physical body, (ii)

informational privacy, and (iii) privacy of choice.

(d) One aspect of privacy is the right to control the

dissemination of personal information. And that every individual

should have a right to be able to control exercise over his/her own

life and image as portrayed in the world and to control

commercial use of his/her identity.

Following passages from different opinions reflect the

aforesaid proposition:

Dr. D.Y. Chandrachud, J.:

42. Privacy is a concomitant of the right of the individual to
exercise control over his or her personality. It finds an
origin in the notion that there are certain rights which are
natural to or inherent in a human being. Natural rights are
inalienable because they are inseparable from the human
personality. The human element in life is impossible to
conceive without the existence of natural rights. In 1690,
John Lockehad in his Second Treatise of Government
observed that the lives, liberties and estates of individuals

28 (1975) 2 SCC 148

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 126 of 567

are as a matter of fundamental natural law, a private
preserve. The idea of a private preserve was to create
barriers from outside interference. In 1765, William
Blackstone in his Commentaries on the Laws of England
spoke of a “natural liberty”. There were, in his view,
absolute rights which were vested in the individual by the
immutable laws of nature. These absolute rights were
divided into rights of personal security, personal liberty and
property. The right of personal security involved a legal and
uninterrupted enjoyment of life, limbs, body, health and
reputation by an individual.

xx xx xx

46. Natural rights are not bestowed by the State. They
inhere in human beings because they are human. They
exist equally in the individual irrespective of class or strata,
gender or orientation.

xx xx xx

318. Life and personal liberty are inalienable rights. These
are rights which are inseparable from a dignified human
existence. The dignity of the individual, equality between
human beings and the quest for liberty are the foundational
pillars of the Indian Constitution.

S.A. Bobde, J. :

415. Therefore, privacy is the necessary condition
precedent to the enjoyment of any of the guarantees in
Part III. As a result, when it is claimed by rights bearers
before constitutional courts, a right to privacy may be
situated not only in
Article 21
, but also simultaneously in
any of the other guarantees in Part III. In the current state
of things,
Articles 19(1)
, 20(3)
, 25
, 28
and
are all rights
helped up and made meaningful by the exercise of privacy.

This is not an exhaustive list. Future developments in
technology and social ordering may well reveal that there
are yet more constitutional sites in which a privacy right
inheres that are not at present evident to us.

R.F. Nariman, J. :

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 127 of 567

521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:

 Privacy that involves the person i.e. when there is
some invasion by the State of a person's rights
relatable to his physical body, such as the right to
move freely;

 Informational privacy which does not deal with a
person's body but deals with a person's mind, and
therefore recognises that an individual may have
control over the dissemination of material that is
personal to him. Unauthorised use of such
information may, therefore lead to infringement of
this right; and
 The privacy of choice, which protects an individual's
autonomy over fundamental personal choices.

For instance, we can ground physical privacy or privacy
relating to the body in Articles 19(1)(d) and (e) read with
Article 21; ground personal information privacy under
Article 21; and the privacy of choice in Articles 19(1)(a) to

(c), 20(3), 21 and 25. The argument based on “privacy”
being a vague and nebulous concept need not, therefore,
detain us.

xx xx xx

532. The learned counsel for the petitioners also referred to
another important aspect of the right to privacy. According
to the learned counsel for the petitioner this right is a
natural law right which is inalienable. Indeed, the reference
order itself, in para 12, refers to this aspect of the
fundamental right contained. It was, therefore, argued
before us that given the international conventions referred
to hereinabove and the fact that this right inheres in every
individual by virtue of his being a human being, such right
is not conferred by the Constitution but is only recognised
and given the status of being fundamental. There is no
doubt that the petitioners are correct in this submission.

However, one important roadblock in the way needs to be
got over.

533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution
Bench of this Court arrived at the conclusion (by majority)
that
Article 21
is the sole repository of all rights to life and
personal liberty, and, when suspended, takes away those

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 128 of 567

rights altogether. A remarkable dissent was that of Khanna,
J. [ Khanna, J. was in line to be Chief Justice of India but
was superseded because of this dissenting judgment. Nani
Palkhivala in an article written on this great Judge's
supersession ended with a poignant sentence, “To the
stature of such a man, the Chief Justiceship of India can
add nothing.” Seervai, in his monumental treatise
Constitutional Law of India had this to say:“53. If in this
Appendix the dissenting judgment of Khanna, J. has not
been considered in detail, it is not for lack of admiration for
the judgment, or the courage which he showed in
delivering it regardless of the cost and consequences to
himself. It cost him the Chief Justiceship of India, but it
gained for him universal esteem not only for his courage
but also for his inflexible judicial independence. If his
judgment is not considered in detail it is because under the
theory of precedents which we have adopted, a dissenting
judgment, however valuable, does not lay down the law
and the object of a critical examination of the majority
judgments in this Appendix was to show that those
judgments are untenable in law, productive of grave public
mischief and ought to be overruled at the earliest
opportunity. The conclusion which Justice Khanna has
reached on the effect of the suspension of
Article 21
is
correct. His reminder that the rule of law did not merely
mean giving effect to an enacted law was timely, and was
reinforced by his reference to the mass murders of millions
of Jews in Nazi concentration camps under an enacted law.
However, the legal analysis in this Chapter confirms his
conclusion though on different grounds from those which
he has given.” (at Appendix p. 2229).] The learned Judge
held: (SCC pp. 747 & 751, paras 525 & 531)

“525. The effect of the suspension of the right to
move any court for the enforcement of the right
conferred by
Article 21
, in my opinion, is that when a
petition is filed in a court, the court would have to
proceed upon the basis that no reliance can be
placed upon that article for obtaining relief from the
court during the period of emergency. Question then
arises as to whether the rule that no one shall be
deprived of his life or personal liberty without the
authority of law still survives during the period of
emergency despite the Presidential Order suspending
the right to move any court for the enforcement of the
right contained in
Article 21.
The answer to this
question is linked with the answer to the question as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 129 of 567

to whether
Article 21
is the sole repository of the right
to life and personal liberty. After giving the matter my
earnest consideration, I am of the opinion that
Article
cannot be considered to be the sole repository of
the right to life and personal liberty. The right to life
and personal liberty is the most precious right of
human beings in civilised societies governed by the
rule of law. Many modern Constitutions incorporate
certain fundamental rights, including the one relating
to personal freedom. According to Blackstone, the
absolute rights of Englishmen were the rights of
personal security, personal liberty and private
property. The American Declaration of Independence
(1776) states that all men are created equal, and
among their inalienable rights are life, liberty, and the
pursuit of happiness. The Second Amendment to the
US Constitution refers inter alia to security of person,
while the Fifth Amendment prohibits inter alia
deprivation of life and liberty without due process, of
law. The different Declarations of Human Rights and
fundamental freedoms have all laid stress upon the
sanctity of life and liberty. They have also given
expression in varying words to the principle that no
one shall be derived of his life or liberty without the
authority of law. The International Commission of
Jurists, which is affiliated to UNESCO, has been
attempting with, considerable success to give
material content to “the rule of law”, an expression
used in the Universal Declaration of Human Rights.
One of its most notable achievements was the
Declaration of Delhi, 1959. This resulted from a
Congress held in New Delhi attended by jurists from
more than 50 countries, and was based on a
questionnaire circulated to 75,000 lawyers. “Respect
for the supreme value of human personality” was
stated to be the basis of all law (see p. 21 of the
Constitutional and Administrative Law by O. Hood
Phillips, 3rd Edn.).

xx xx xx

531. I am unable to subscribe to the view that when
right to enforce the right under
Article 21
is
suspended, the result would be that there would be
no remedy against deprivation of a person's life or
liberty by the State even though such deprivation is
without the authority of law or even in flagrant

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 130 of 567

violation of the provisions of law. The right not to be
deprived of one's life or liberty without the authority of
law was not the creation of the Constitution. Such
right existed before the Constitution came into force.
The fact that the Framers of the Constitution made an
aspect of such right a part of the fundamental rights
did not have the effect of exterminating the
independent identity of such right and of making

Article 21
to be the sole repository of that right. Its
real effect was to ensure that a law under which a
person can be deprived of his life or personal liberty
should prescribe a procedure for such deprivation or,
according to the dictum laid down by Mukherjea, J. in
Gopalan case [
A.K. Gopalan v. State of Madras
, AIR
1950 SC 27 : 1950 SCR 88] , such law should be a
valid law not violative of fundamental rights
guaranteed by Part III of the Constitution. Recognition
as fundamental right of one aspect of the pre-
constitutional right cannot have the effect of making
things less favourable so far as the sanctity of life and
personal liberty is concerned compared to the
position if an aspect of such right had not been
recognised as fundamental right because of the
vulnerability of fundamental rights accruing from

Article 359.
I am also unable to agree that in view of
the Presidential Order in the matter of sanctity of life
and liberty, things would be worse off compared to the
state of law as it existed before the coming into force
of the Constitution.”
(emphasis in original)

S.K. Kaul, J.:

574. I have had the benefit of reading the exhaustive and
erudite opinions of Rohinton F. Nariman and Dr D.Y.
Chandrachud, JJ. The conclusion is the same, answering
the reference that privacy is not just a common law right,
but a fundamental right falling in Part III of the Constitution
of India. I agree with this conclusion as privacy is a primal,
natural right which is inherent to an individual. However, I
am tempted to set out my perspective on the issue of
privacy as a right, which to my mind, is an important core of
any individual existence.

xx xx xx

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 131 of 567

620. I had earlier adverted to an aspect of privacy — the
right to control dissemination of personal information. The
boundaries that people establish from others in society are
not only physical but also informational. There are different
kinds of boundaries in respect to different relations. Privacy
assists in preventing awkward social situations and
reducing social frictions. Most of the information about
individuals can fall under the phrase “none of your
business”. On information being shared voluntarily, the
same may be said to be in confidence and any breach of
confidentiality is a breach of the trust. This is more so in the
professional relationships such as with doctors and lawyers
which requires an element of candour in disclosure of
information. An individual has the right to control one's life
while submitting personal data for various facilities and
services. It is but essential that the individual knows as to
what the data is being used for with the ability to correct
and amend it. The hallmark of freedom in a democracy is
having the autonomy and control over our lives which
becomes impossible, if important decisions are made in
secret without our awareness or participation. [ Daniel
Solove, “10 Reasons Why Privacy Matters” published on
20-1-2014 <https://www.teachprivacy.com/10-reasons-

privacy-matters/>.]

xx xx xx

625. Every individual should have a right to be able to
exercise control over his/her own life and image as
portrayed to the world and to control commercial use of
his/her identity. This also means that an individual may be
permitted to prevent others from using his image, name
and other aspects of his/her personal life and identity for
commercial purposes without his/her consent. [ The
Second Circuit's decision in Haelan Laboratories Inc. v.
Topps Chewing Gum Inc., 202 F 2d 866 (2d Cir 1953)
penned by Jerome Frank, J. defined the right to publicity as
“the right to grant the exclusive privilege of publishing his
picture”.]”

xx xx xx

646. If the individual permits someone to enter the house it
does not mean that others can enter the house. The only
check and balance is that it should not harm the other
individual or affect his or her rights. This applies both to the
physical form and to technology. In an era where there are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 132 of 567

wide, varied, social and cultural norms and more so in a
country like ours which prides itself on its diversity, privacy
is one of the most important rights to be protected both
against State and non-State actors and be recognised as a
fundamental right. How it thereafter works out in its inter-
play with other fundamental rights and when such
restrictions would become necessary would depend on the
factual matrix of each case. That it may give rise to more
litigation can hardly be the reason not to recognise this
important, natural, primordial right as a fundamental right.”

(ii) The sanctity of privacy lies in its functional relationship with

dignity: Privacy ensures that a human being can lead a life of

dignity by securing the inner recesses of the human personality

from unwanted intrusions. While the legitimate expectation of

privacy may vary from intimate zone to the private zone and from

the private to the public arena, it is important to underscore that

privacy is not lost or surrendered merely because the individual is

in a public place. Further, privacy is a postulate of dignity itself.

Also, privacy concerns arise when the State seeks to intrude into

the body and the mind of the citizen. This aspect is discussed in

the following manner:

Dr. D.Y. Chandrachud, J. :

127. The submission that recognising the right to privacy is
an exercise which would require a constitutional
amendment and cannot be a matter of judicial
interpretation is not an acceptable doctrinal position. The
argument assumes that the right to privacy is independent
of the liberties guaranteed by Part III of the Constitution.

There lies the error. The right to privacy is an element of
human dignity. The sanctity of privacy lies in its functional
relationship with dignity. Privacy ensures that a human

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 133 of 567

being can lead a life of dignity by securing the inner
recesses of the human personality from unwanted
intrusion. Privacy recognises the autonomy of the individual
and the right of every person to make essential choices
which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a
human being to fulfill the liberties and freedoms which are
the cornerstone of the Constitution. To recognise the value
of privacy as a constitutional entitlement and interest is not
to fashion a new fundamental right by a process of
amendment through judicial fiat. Neither are the Judges nor
is the process of judicial review entrusted with the
constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of
determining the nature and extent of the freedoms
available to each person under the fabric of those
constitutional guarantees which are protected. Courts have
traditionally discharged that function and in the context of

Article 21
itself, as we have already noted, a panoply of
protections governing different facets of a dignified
existence has been held to fall within the protection of

Article 21.

xx xx xx

297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual. The
ability of an individual to make choices lies at the core of
the human personality. The notion of privacy enables the
individual to assert and control the human element which is
inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested in
the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns
over which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the human
personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual
possesses an inalienable ability and right to preserve a
private space in which the human personality can develop.
Without the ability to make choices, the inviolability of the
personality would be in doubt. Recognising a zone of
privacy is but an acknowledgment that each individual must
be entitled to chart and pursue the course of development

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 134 of 567

of personality. Hence privacy is a postulate of human
dignity itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of
privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals
to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal
demands of homogeneity. Privacy is an intrinsic recognition
of heterogeneity, of the right of the individual to be different
and to stand against the tide of conformity in creating a
zone of solitude. Privacy protects the individual from the
searching glare of publicity in matters which are personal to
his or her life. Privacy attaches to the person and not to the
place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a
pattern woven out of a thread of diversity into the fabric of a
plural culture.

xx xx xx

322. Privacy is the constitutional core of human dignity.
Privacy has both a normative and descriptive function. At a
normative level privacy subserves those eternal values
upon which the guarantees of life, liberty and freedom are
founded. At a descriptive level, privacy postulates a bundle
of entitlements and interests which lie at the foundation of
ordered liberty.

323. Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards
individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal
choices governing a way of life are intrinsic to privacy.
Privacy protects heterogeneity and recognises the plurality
and diversity of our culture. While the legitimate
expectation of privacy may vary from the intimate zone to
the private zone and from the private to the public arenas,
it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an
essential facet of the dignity of the human being.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 135 of 567

S.A. Bobde, J. :

407. Undoubtedly, privacy exists, as the foregoing
demonstrates, as a verifiable fact in all civilised societies.

But privacy does not stop at being merely a descriptive
claim. It also embodies a normative one. The normative
case for privacy is intuitively simple. Nature has clothed
man, amongst other things, with dignity and liberty so that
he may be free to do what he will consistent with the
freedom of another and to develop his faculties to the
fullest measure necessary to live in happiness and peace.
The Constitution, through its Part III, enumerates many of
these freedoms and their corresponding rights as
fundamental rights. Privacy is an essential condition for the
exercise of most of these freedoms. Ex facie, every right
which is integral to the constitutional rights to dignity, life,
personal liberty and freedom, as indeed the right to privacy
is, must itself be regarded as a fundamental right.

408. Though he did not use the name of “privacy”, it is
clear that it is what J.S. Mill took to be indispensable to the
existence of the general reservoir of liberty that
democracies are expected to reserve to their citizens. In
the introduction to his seminal On Liberty (1859), he
characterised freedom in the following way:

“This, then, is the appropriate region of human liberty.
It comprises, first, the inward domain of
consciousness; demanding liberty of conscience, in
the most comprehensive sense; liberty of thought and
feeling; absolute freedom of opinion and sentiment on
all subjects, practical or speculative, scientific, moral,
or theological. The liberty of expressing and
publishing opinions may seem to fall under a different
principle, since it belongs to that part of the conduct
of an individual which concerns other people; but,
being almost of as much importance as the liberty of
thought itself, and resting in great part on the same
reasons, is practically inseparable from it. Secondly,
the principle requires liberty of tastes and pursuits; of
framing the plan of our life to suit our own character;
of doing as we like, subject to such consequences as
may follow: without impediment from our fellow
creatures, so long as what we do does not harm
them, even though they should think our conduct
foolish, perverse, or wrong. Thirdly, from this liberty of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 136 of 567

each individual, follows the liberty, within the same
limits, of combination among individuals; freedom to
unite, for any purpose not involving harm to others:

the persons combining being supposed to be of full
age, and not forced or deceived.

No society in which these liberties are not, on the
whole, respected, is free, whatever may be its form of
Government; and none is completely free in which
they do not exist absolute and unqualified. The only
freedom which deserves the name, is that of pursuing
our own good in our own way, so long as we do not
attempt to deprive others of theirs, or impede their
efforts to obtain it. Each is the proper guardian of his
own health, whether bodily, or mental and spiritual.
Mankind are greater gainers by suffering each other
to live as seems good to themselves, than by
compelling each to live as seems good to the rest.

Though this doctrine is anything but new, and, to
some persons, may have the air of a truism, there is
no doctrine which stands more directly opposed to
the general tendency of existing opinion and practice.
Society has expended fully as much effort in the
attempt (according to its lights) to compel people to
conform to its notions of personal, as of social
excellence.” [John Stuart Mill, On Liberty and Other
Essays (Stefan Collini Edition, 1989) (1859)]
(emphasis supplied)

409. The first and natural home for a right to privacy is in

Article 21
at the very heart of “personal liberty” and life
itself. Liberty and privacy are integrally connected in a way
that privacy is often the basic condition necessary for
exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being
performed at all and in many cases with dignity unless an
individual is left alone or is otherwise empowered to ensure
his or her privacy. Birth and death are events when privacy
is required for ensuring dignity amongst all civilised people.
Privacy is thus one of those rights “instrumentally required
if one is to enjoy” [ Laurence H. Tribe and Michael C. Dorf,
“Levels of Generality in the Definition of Rights”, 57 U CHI L
REV 1057 (1990) at p. 1068.] rights specified and
enumerated in the constitutional text.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 137 of 567

410. This Court has endorsed the view that “life” must
mean “something more than mere animal existence” [Munn
v. Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US
113 (1877) (Per Field, J.) as cited in Kharak Singh, (1964)
1 SCR 332 at pp. 347-48] on a number of occasions,
beginning with the Constitution Bench in Sunil Batra (1) v.
Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
: 1979 SCC (Cri) 155] Sunil Batra [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] connected
this view of
Article 21
to the constitutional value of dignity.
In numerous cases, including Francis Coralie Mullin v. UT
of Delhi [Francis Coralie Mullin v. UT of Delhi, (1981) 1
SCC 608 : 1981 SCC (Cri) 212] , this Court has viewed
liberty as closely linked to dignity. Their relationship to the
effect of taking into the protection of “life” the protection of
“faculties of thinking and feeling”, and of temporary and
permanent impairments to those faculties.
In
Francis
Coralie Mullin[Francis Coralie Mullin v. UT of Delhi
, (1981)
1 SCC 608 : 1981 SCC (Cri) 212] , Bhagwati, J. opined as
follows: (SCC p. 618, para 7)

“7. Now obviously, the right to life enshrined in
Article
cannot be restricted to mere animal existence. It
means something much more than just physical
survival.
In Kharak Singh v. State of U.P. [Kharak
Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2
Cri LJ 329 : (1964) 1 SCR 332], Subba Rao, J.

quoted with approval the following passage from the
judgment of Field, J. in Munn v. Illinois [Munn v.
Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94
US 113 (1877)] to emphasise the quality of life
covered by
Article 21: (Kharak Singh case [
Kharak
Singh v. State of U.P.
, AIR 1963 SC 1295 : (1963) 2
Cri LJ 329 : (1964) 1 SCR 332] , AIR p. 1301, para

15)

15. … “By the term “life” as here used something
more is meant than mere animal existence. The
inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The
provision equally prohibits the mutilation of the body
or amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body
through which the soul communicates with the outer
world.” ’

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 138 of 567

and this passage was again accepted as laying down
the correct law by the Constitution Bench of this Court
in the first Sunil Batra case [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155].

Every limb or faculty through which life is enjoyed is
thus protected by
Article 21
and a fortiori, this would
include the faculties of thinking and feeling. Now
deprivation which is inhibited by
Article 21
may be
total or partial, neither any limb or faculty can be
totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by

Article 21
, whether such deprivation be permanent or
temporary and, furthermore, deprivation is not an act
which is complete once and for all: it is a continuing
act and so long as it lasts, it must be in accordance
with procedure established by law. It is therefore clear
that any act which damages or injures or interferes
with the use of, any limb or faculty of a person, either
permanently or even temporarily, would be within the
inhibition of Article 21.”
(emphasis supplied)

Privacy is, therefore, necessary in both its mental and
physical aspects as an enabler of guaranteed freedoms.

411. It is difficult to see how dignity—whose constitutional
significance is acknowledged both by the Preamble and by
this Court in its exposition of
Article 21
, among other rights
—can be assured to the individual without privacy. Both
dignity and privacy are intimately intertwined and are
natural conditions for the birth and death of individuals, and
for many significant events in life between these events.
Necessarily, then, the right to privacy is an integral part of
both “life” and “personal liberty” under
Article 21
, and is
intended to enable the rights bearer to develop her
potential to the fullest extent made possible only in
consonance with the constitutional values expressed in the
Preamble as well as across Part III.

R.F. Nariman, J:

525. But most important of all is the cardinal value of
fraternity which assures the dignity of the individual. [ In
1834, Jacques-Charles Dupont de l'Eure associated the
three terms liberty, equality and fraternity together in the
Revue Républicaine, which he edited, as follows:“Any man
aspires to liberty, to equality, but he cannot achieve it

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 139 of 567

without the assistance of other men, without
fraternity.”Many of our decisions recognise human dignity
as being an essential part of the fundamental rights
chapter. For example, see Prem Shankar Shukla v. Delhi
Admn., (1980) 3 SCC 526 at para 21,
Francis Coralie
Mullin v. UT of Delhi
, (1981) 1 SCC 608 at paras 6, 7 and
8,
Bandhua Mukti Morcha v. Union of India
, (1984) 3 SCC
161 at para 10,
Maharashtra University of Health Sciences
v. Satchikitsa Prasarak Mandal
, (2010) 3 SCC 786 at para
37,
Shabnam v. Union of India
, (2015) 6 SCC 702 at paras
12.4 and 14 and
Jeeja Ghosh v. Union of India
, (2016) 7
SCC 761 at para 37.] The dignity of the individual
encompasses the right of the individual to develop to the
full extent of his potential. And this development can only
be if an individual has autonomy over fundamental
personal choices and control over dissemination of
personal information which may be infringed through an
unauthorised use of such information. It is clear that
Article
, more than any of the other articles in the fundamental
rights chapter, reflects each of these constitutional values
in full, and is to be read in consonance with these values
and with the international covenants that we have referred
to. In the ultimate analysis, the fundamental right to privacy,
which has so many developing facets, can only be
developed on a case-to-case basis. Depending upon the
particular facet that is relied upon, either
Article 21
by itself
or in conjunction with other fundamental rights would get
attracted.

S.K. Kaul, J. :

618. Rohinton F. Nariman, and Dr D.Y. Chandrachud, JJ.,
have emphasised the importance of the protection of
privacy to ensure protection of liberty and dignity. I agree
with them and seek to refer to some legal observations in
this regard:

618.1. In Robertson and Nicol on Media Law [ Geoffrey
Robertson, QC and Andrew Nicol, QC, Media Law, 5th
Edn., p. 265.] it was observed:

“Individuals have a psychological need to preserve an
intrusion-free zone for their personality and family and
suffer anguish and stress when that zone is violated.
Democratic societies must protect privacy as part of
their facilitation of individual freedom, and offer some
legal support for the individual choice as to what

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 140 of 567

aspects of intimate personal life the citizen is
prepared to share with others. This freedom in other
words springs from the same source as freedom of
expression: a liberty that enhances individual life in a
democratic community.”

618.2. Lord Nicholls and Lord Hoffmann in their opinion in
Naomi Campbell case[Campbell v. MGN Ltd., (2004) 2 AC
457 : (2004) 2 WLR 1232 : (2004) UKHL 22 (HL)]
recognised the importance of the protection of privacy. Lord
Hoffman opined as under: (AC p. 472 H & 473 A-D, paras
50-51)

“50. What human rights law has done is to identify
private information as something worth protecting as
an aspect of human autonomy and dignity. And this
recognition has raised inescapably the question of
why it should be worth protecting against the state but
not against a private person. There may of course be
justifications for the publication of private information
by private persons which would not be available to
the state — I have particularly in mind the position of
the media, to which I shall return in a moment — but I
can see no logical ground for saying that a person
should have less protection against a private
individual than he would have against the state for the
publication of personal information for which there is
no justification. Nor, it appears, have any of the other
Judges who have considered the matter.

51. The result of these developments has been a shift
in the centre of gravity of the action for breach of
confidence when it is used as a remedy for the
unjustified publication of personal information. …
Instead of the cause of action being based upon the
duty of good faith applicable to confidential personal
information and trade secrets alike, it focuses upon
the protection of human autonomy and dignity — the
right to control the dissemination of information about
one's private life and the right to the esteem and
respect of other people.”

618.3. Lord Nicholls opined as under: (Naomi Campbell
case [Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2
WLR 1232 : (2004) UKHL 22 (HL)] , AC p. 464 D-F, para

12)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 141 of 567

“12. The present case concerns one aspect of
invasion of privacy: wrongful disclosure of private
information. The case involves the familiar
competition between freedom of expression and
respect for an individual's privacy. Both are vitally
important rights. Neither has precedence over the
other. The importance of freedom of expression has
been stressed often and eloquently, the importance of
privacy less so. But it, too, lies at the heart of liberty in
a modern state. A proper degree of privacy is
essential for the well-being and development of an
individual. And restraints imposed on government to
pry into the lives of the citizen go to the essence of a
democratic state: see La Forest J. in R. v. Dyment [R.
v. Dyment, 1988 SCC OnLine Can SC 86 : (1988) 2
SCR 417] , SCC OnLine Can SC para 17 : SCR p.

426.”

619. Privacy is also the key to freedom of thought. A
person has a right to think. The thoughts are sometimes
translated into speech but confined to the person to whom
it is made. For example, one may want to criticise someone
but not share the criticism with the world.

Chelameswar, J.:

372. History abounds with examples of attempts by
Governments to shape the minds of subjects. In other
words, conditioning the thought process by prescribing
what to read or not to read; what forms of art alone are
required to be appreciated leading to the conditioning of
beliefs; interfering with the choice of people regarding the
kind of literature, music or art which an individual would
prefer to enjoy. [Stanleyv. Georgia, 1969 SCC OnLine US
SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969)“3. … that the
mere private possession of obscene matter cannot
constitutionally be made a crime.***9. … State has no
business telling a man, sitting alone in his own house, what
books he may read or what films he may watch. Our whole
constitutional heritage rebels at the thought of giving
Government the power to control men's minds.” (SCC
OnLine US SC paras 3 & 9)] Such conditioning is sought to
be achieved by screening the source of information or
prescribing penalties for making choices which
Governments do not approve. [
Bijoe Emmanuel v. State of
Kerala
, (1986) 3 SCC 615] Insofar as religious beliefs are
concerned, a good deal of the misery our species suffer

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 142 of 567

owes its existence to and centres around competing claims
of the right to propagate religion. Constitution of India
protects the liberty of all subjects guaranteeing [“25.

Freedom of conscience and free profession, practice
and propagation of religion.—(1) Subject to public order,
morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate
religion.(2) Nothing in this article shall affect the operation
of any existing law or prevent the State from making any
law—(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated
with religious practice;(b) providing for social welfare and
reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of
Hindus.Explanation I.—The wearing and carrying of
kirpans shall be deemed to be included in the profession of
the Sikh religion. Explanation II.—In sub-clause (b) of
clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.”] the freedom of
conscience and right to freely profess, practice and
propagate religion. While the right to freely “profess,
practice and propagate religion” may be a facet of free
speech guaranteed under
Article 19(1)(a)
, the freedom of
the belief or faith in any religion is a matter of conscience
falling within the zone of purely private thought process and
is an aspect of liberty. There are areas other than religious
beliefs which form part of the individual's freedom of
conscience such as political belief, etc. which form part of
the liberty under
Article 21.

373. Concerns of privacy arise when the State seeks to
intrude into the body of subjects. [Skinner v. Oklahoma,
1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535
(1942)“20. There are limits to the extent to which a
legislatively represented majority may conduct biological
experiments at the expense of the dignity and personality
and natural powers of a minority—even those who have
been guilty of what the majority defines as crimes.” (SCC
OnLine US SC para 20)—Jackson, J.] Corporeal
punishments were not unknown to India, their abolition is of
a recent vintage. Forced feeding of certain persons by the
State raises concerns of privacy. An individual's rights to
refuse life prolonging medical treatment or terminate his life
is another freedom which falls within the zone of the right to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 143 of 567

privacy. I am conscious of the fact that the issue is pending
before this Court. But in various other jurisdictions, there is
a huge debate on those issues though it is still a grey area.
[ For the legal debate in this area in US, See Chapter 15.11
of American Constitutional Law by Laurence H. Tribe, 2nd
Edn.] A woman's freedom of choice whether to bear a child
or abort her pregnancy are areas which fall in the realm of
privacy. Similarly, the freedom to choose either to work or
not and the freedom to choose the nature of the work are
areas of private decision-making process. The right to
travel freely within the country or go abroad is an area
falling within the right to privacy. The text of our
Constitution recognised the freedom to travel throughout
the country under
Article 19(1)(d).
This Court has already
recognised that such a right takes within its sweep the right
to travel abroad.
[
Maneka Gandhi v. Union of India
, (1978)
1 SCC 248] A person's freedom to choose the place of his
residence once again is a part of his right to privacy
[Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed
186 : 179 US 270 (1900)—“8. Undoubtedly the right of
locomotion, the right to remove from one place to another
according to inclination, is an attribute of personal
liberty….” (SCC OnLine US SC para 8)] recognised by the
Constitution of India under
Article 19(1)(e)
though the
predominant purpose of enumerating the abovementioned
two freedoms in
Article 19(1)
is to disable both the federal
and State Governments from creating barriers which are
incompatible with the federal nature of our country and its
Constitution. The choice of appearance and apparel are
also aspects of the right to privacy. The freedom of certain
groups of subjects to determine their appearance and
apparel (such as keeping long hair and wearing a turban)
are protected not as a part of the right to privacy but as a
part of their religious belief. Such a freedom need not
necessarily be based on religious beliefs falling under

Article 25.
Informational traces are also an area which is
the subject-matter of huge debate in various jurisdictions
falling within the realm of the right to privacy, such data is
as personal as that of the choice of appearance and
apparel. Telephone tappings and internet hacking by State,
of personal data is another area which falls within the realm
of privacy. The instant reference arises out of such an
attempt by the Union of India to collect biometric data
regarding all the residents of this country. The
abovementioned are some of the areas where some
interest of privacy exists. The examples given above

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 144 of 567

indicate to some extent the nature and scope of the right to
privacy.

374. I do not think that anybody in this country would like to
have the officers of the State intruding into their homes or
private property at will or soldiers quartered in their houses
without their consent. I do not think that anybody would like
to be told by the State as to what they should eat or how
they should dress or whom they should be associated with
either in their personal, social or political life. Freedom of
social and political association is guaranteed to citizens
under
Article 19(1)(c).
Personal association is still a
doubtful area. [The High Court of A.P. held that
Article 19(1)

(c) would take within its sweep the matrimonial association
in
T. Sareetha v. T. Venkata Subbaiah
, 1983 SCC OnLine
AP 90 : AIR 1983 AP 356.

However, this case was later
overruled by this Court in
Saroj Rani v. Sudarshan Kumar
Chadha
, (1984) 4 SCC 90 : AIR 1984 SC 1562.] The
decision-making process regarding the freedom of
association, freedoms of travel and residence are purely
private and fall within the realm of the right to privacy. It is
one of the most intimate decisions.

375. All liberal democracies believe that the State should
not have unqualified authority to intrude into certain
aspects of human life and that the authority should be
limited by parameters constitutionally fixed. Fundamental
rights are the only constitutional firewall to prevent State's
interference with those core freedoms constituting liberty of
a human being. The right to privacy is certainly one of the
core freedoms which is to be defended. It is part of liberty
within the meaning of that expression in
Article 21.

376. I am in complete agreement with the conclusions
recorded by my learned Brothers in this regard.”

(iii) Privacy is intrinsic to freedom, liberty and dignity: The right

to privacy is inherent to the liberties guaranteed by Part-III of the

Constitution and privacy is an element of human dignity. The

fundamental right to privacy derives from Part-III of the

Constitution and recognition of this right does not require a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 145 of 567

constitutional amendment. Privacy is more than merely a

derivative constitutional right. It is the necessary basis of rights

guaranteed in the text of the Constitution. Discussion in this

behalf is captured in the following passages:

Dr. D.Y. Chandrachud, J. :

127. The submission that recognising the right to privacy is
an exercise which would require a constitutional
amendment and cannot be a matter of judicial
interpretation is not an acceptable doctrinal position. The
argument assumes that the right to privacy is independent
of the liberties guaranteed by Part III of the Constitution.

There lies the error. The right to privacy is an element of
human dignity. The sanctity of privacy lies in its functional
relationship with dignity. Privacy ensures that a human
being can lead a life of dignity by securing the inner
recesses of the human personality from unwanted
intrusion. Privacy recognises the autonomy of the individual
and the right of every person to make essential choices
which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a
human being to fulfill the liberties and freedoms which are
the cornerstone of the Constitution. To recognise the value
of privacy as a constitutional entitlement and interest is not
to fashion a new fundamental right by a process of
amendment through judicial fiat. Neither are the Judges nor
is the process of judicial review entrusted with the
constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of
determining the nature and extent of the freedoms
available to each person under the fabric of those
constitutional guarantees which are protected. Courts have
traditionally discharged that function and in the context of

Article 21
itself, as we have already noted, a panoply of
protections governing different facets of a dignified
existence has been held to fall within the protection of

Article 21.

S.A. Bobde, J. :

416. There is nothing unusual in the judicial enumeration of
one right on the basis of another under the Constitution. In

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 146 of 567

the case of
Article 21
's guarantee of “personal liberty”, this
practice is only natural if Salmond's formulation of liberty as
“incipient rights” [ P.J. Fitzgerald, Salmond on
Jurisprudence at p. 228.] is correct. By the process of
enumeration, constitutional courts merely give a name and
specify the core of guarantees already present in the
residue of constitutional liberty. Over time, the Supreme
Court has been able to imply by its interpretative process
that several fundamental rights including the right to
privacy emerge out of expressly stated fundamental rights.

In Unni Krishnan, J.P. v. State of A.P. [Unni Krishnan,
J.P. v.
State of A.P.
, (1993) 1 SCC 645] , a Constitution Bench of
this Court held that “several unenumerated rights fall within

Article 21
since personal liberty is of widest amplitude”
[
Unni Krishnan, J.P. v. State of A.P.
, (1993) 1 SCC 645 at p.
669, para 29] on the way to affirming the existence of a
right to education. It went on to supply the following
indicative list of such rights, which included the right to
privacy: (SCC pp. 669-70, para 30)

“30. The following rights are held to be covered under

Article 21:

1. The right to go abroad.
Satwant Singh v. D.
Ramarathnam [Satwant Singh Sawhney
v. D.
Ramarathnam, (1967) 3 SCR 525 : AIR 1967 SC
1836] .

2. The right to privacy.
Gobind v. State of M.P.
[Gobind
v. State of M.P., (1975) 2 SCC 148 : 1975
SCC (Cri) 468] In this case reliance was placed on
the American decision in Griswold v. Connecticut
[Griswold v. Connecticut, 1965 SCC OnLine US SC
124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479
(1965)] , US at p. 510.

3. The right against solitary confinement. Sunil Batra
(1) v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978)
4 SCC 494 : 1979 SCC (Cri) 155] , SCC at p. 545.

4. The right against bar fetters. Charles Sobhraj v.
Supt.,
Central Jail [Charles Sobraj v. Supt., Central
Jail
, (1978) 4 SCC 104 : 1978 SCC (Cri) 542].

5. The right to legal aid. M.H. Hoskot v. State of
Maharashtra [M.H. Hoskot v. State of Maharashtra,
(1978) 3 SCC 544 : 1978 SCC (Cri) 468].

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 147 of 567

6. The right to speedy trial. Hussainara Khatoon (1)
v. State of Bihar[Hussainara Khatoon (1) v. State of
Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23] .

7. The right against handcuffing.
Prem Shankar v.
Delhi Admn
.
[Prem Shankar Shukla v. Delhi Admn.,
(1980) 3 SCC 526 : 1980 SCC (Cri) 815]

8. The right against delayed execution. T.V.
Vatheeswaran v. State of T.N. [T.V. Vatheeswaran v.
State of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri) 342]

9. The right against custodial violence. Sheela Barse
v. State of Maharashtra [Sheela Barse v. State of
Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353].

10. The right against public hanging. Attorney
General of India v. Lachma Devi [Attorney General of
India v. Lachma Devi, 1989 Supp (1) SCC 264 : 1989
SCC (Cri) 413].

11. Doctor's assistance. Paramananda Katara v.
Union of India [Parmanand Katara v. Union of India,
(1989) 4 SCC 286 : 1989 SCC (Cri) 721].

12. Shelter.
Santistar Builders v. Narayan Khimalal
Totame [Shantistar Builders
v. Narayan Khimalal
Totame, (1990) 1 SCC 520] .”

In the case of privacy, the case for judicial enumeration is
especially strong. It is no doubt a fair implication from

Article 21
, but also more. Privacy is a right or condition,
“logically presupposed” [ Laurence H. Tribe And Michael C.
Dorf, “Levels Of Generality in the Definition of Rights”, 57 U
CHI L REV 1057 (1990) at p. 1068.] by rights expressly
recorded in the constitutional text, if they are to make
sense. As a result, privacy is more than merely a derivative
constitutional right. It is the necessary and unavoidable
logical entailment of rights guaranteed in the text of the
Constitution.

R.F. Nariman, J:

482. Shri Sundaram has argued that rights have to be
traced directly to those expressly stated in the fundamental
rights chapter of the Constitution for such rights to receive

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 148 of 567

protection, and privacy is not one of them. It will be noticed
that the dignity of the individual is a cardinal value, which is
expressed in the Preamble to the Constitution. Such dignity
is not expressly stated as a right in the fundamental rights
chapter, but has been read into the right to life and
personal liberty. The right to live with dignity is expressly
read into
Article 21
by the judgment in Jolly George
Varghesev. Bank of Cochin [Jolly George Varghese v.

Bank of Cochin, (1980) 2 SCC 360] , at para 10. Similarly,
the right against bar fetters and handcuffing being integral
to an individual's dignity was read into
Article 21
by the
judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , at paras
192, 197-B, 234 and 241 and Prem Shankar Shukla v.
Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980)
3 SCC 526 : 1980 SCC (Cri) 815] , at paras 21 and 22. It is
too late in the day to canvas that a fundamental right must
be traceable to express language in Part III of the
Constitution. As will be pointed out later in this judgment, a
Constitution has to be read in such a way that words
deliver up principles that are to be followed and if this is
kept in mind, it is clear that the concept of privacy is
contained not merely in personal liberty, but also in the
dignity of the individual.”

(iv) Privacy has both positive and negative content: The

negative content restrains the State from committing an intrusion

upon the life and personal liberty of a citizen. Its positive content

imposes an obligation on the State to take all necessary

measures to protect the privacy of the individual.

Dr. D.Y. Chandrachud, J.:

326. Privacy has both positive and negative content. The
negative content restrains the State from committing an
intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the State to take
all necessary measures to protect the privacy of the
individual.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 149 of 567

(v) Informational Privacy is a facet of right to privacy: The old

adage that ‘knowledge is power’ has stark implications for the

position of individual where data is ubiquitous, an all-

encompassing presence. Every transaction of an individual user

leaves electronic tracks without her knowledge. Individually these

information silos may seem inconsequential. In aggregation,

information provides a picture of the beings. The challenges

which big data poses to privacy emanate from both State and

non-State entities. This proposition is described in the following

manner:

Dr. D.Y. Chandrachud, J.:

300. Ours is an age of information. Information is
knowledge. The old adage that “knowledge is power” has
stark implications for the position of the individual where
data is ubiquitous, an all-encompassing presence.

Technology has made life fundamentally interconnected.
The internet has become all-pervasive as individuals spend
more and more time online each day of their lives.
Individuals connect with others and use the internet as a
means of communication. The internet is used to carry on
business and to buy goods and services. Individuals
browse the web in search of information, to send e-mails,
use instant messaging services and to download movies.
Online purchases have become an efficient substitute for
the daily visit to the neighbouring store. Online banking has
redefined relationships between bankers and customers.
Online trading has created a new platform for the market in
securities. Online music has refashioned the radio. Online
books have opened up a new universe for the bibliophile.
The old-fashioned travel agent has been rendered
redundant by web portals which provide everything from
restaurants to rest houses, airline tickets to art galleries,
museum tickets to music shows. These are but a few of the
reasons people access the internet each day of their lives.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 150 of 567

Yet every transaction of an individual user and every site
that she visits, leaves electronic tracks generally without
her knowledge. These electronic tracks contain powerful
means of information which provide knowledge of the sort
of person that the user is and her interests [See Francois
Nawrot, Katarzyna Syska and Przemyslaw Switalski,
“Horizontal Application of Fundamental Rights — Right to
Privacy on the Internet”, 9th Annual European
Constitutionalism Seminar (May 2010), University of
Warsaw, available at <http://en.zpc.wpia.uw.edu.pl/wp-
content/uploads/2010/04/9_Horizontal_Application_of_Fun
damental_Rights.pdf>.] . Individually, these information
silos may seem inconsequential. In aggregation, they
disclose the nature of the personality: food habits,
language, health, hobbies, sexual preferences, friendships,
ways of dress and political affiliation. In aggregation,
information provides a picture of the being: of things which
matter and those that do not, of things to be disclosed and
those best hidden.

xx xx xx

304. Data mining processes together with knowledge
discovery can be combined to create facts about
individuals. Metadata and the internet of things have the
ability to redefine human existence in ways which are yet
fully to be perceived. This, as Christina Moniodis states in
her illuminating article, results in the creation of new
knowledge about individuals; something which even she or
he did not possess. This poses serious issues for the
Court. In an age of rapidly evolving technology it is
impossible for a Judge to conceive of all the possible uses
of information or its consequences:

“… The creation of new knowledge complicates data
privacy law as it involves information the individual
did not possess and could not disclose, knowingly or
otherwise. In addition, as our State becomes an
“information State” through increasing reliance on
information—such that information is described as the
“lifeblood that sustains political, social, and business
decisions. It becomes impossible to conceptualize all
of the possible uses of information and resulting
harms. Such a situation poses a challenge for courts
who are effectively asked to anticipate and remedy
invisible, evolving harms.” [ Christina P. Moniodis,
“Moving from Nixon to NASA: Privacy's Second

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 151 of 567

Strand — A Right to Informational Privacy”, Yale
Journal of Law and Technology (2012), Vol. 15 (1), at
p. 154.]

The contemporary age has been aptly regarded as “an era
of ubiquitous dataveillance, or the systematic monitoring of
citizen's communications or actions through the use of
information technology” [Yvonne McDermott,
“Conceptualizing the Right to Data Protection in an Era of
Big Data”, Big Data and Society (2017), at p. 1.] . It is also
an age of “big data” or the collection of data sets. These
data sets are capable of being searched; they have
linkages with other data sets; and are marked by their
exhaustive scope and the permanency of collection. [Id, at
pp. 1 and 4.] The challenges which big data poses to
privacy interests emanate from State and non-State
entities. Users of wearable devices and social media
networks may not conceive of themselves as having
volunteered data but their activities of use and engagement
result in the generation of vast amounts of data about
individual lifestyles, choices and preferences. Yvonne
McDermott speaks about the quantified self in eloquent
terms:

“… The rise in the so-called ‘quantified self’, or the
self-tracking of biological, environmental, physical, or
behavioural information through tracking devices,
Internet-of-things devices, social network data and
other means (?Swan.2013) may result in information
being gathered not just about the individual user, but
about people around them as well. Thus, a solely
consent-based model does not entirely ensure the
protection of one's data, especially when data
collected for one purpose can be repurposed for
another.” [Id, at p. 4.]

xx xx xx

328. Informational privacy is a facet of the right to privacy.

The dangers to privacy in an age of information can
originate not only from the State but from non-State actors
as well. We commend to the Union Government the need
to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful
and sensitive balance between individual interests and
legitimate concerns of the State. The legitimate aims of the
State would include for instance protecting national

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 152 of 567

security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing
the dissipation of social welfare benefits. These are matters
of policy to be considered by the Union Government while
designing a carefully structured regime for the protection of
the data. Since the Union Government has informed the
Court that it has constituted a Committee chaired by
Hon'ble Shri Justice B.N. Srikrishna, former Judge of this
Court, for that purpose, the matter shall be dealt with
appropriately by the Union Government having due regard
to what has been set out in this judgment.

S.K. Kaul, J.:

585. The growth and development of technology has
created new instruments for the possible invasion of
privacy by the State, including through surveillance,
profiling and data collection and processing. Surveillance is
not new, but technology has permitted surveillance in ways
that are unimaginable. Edward Snowden shocked the
world with his disclosures about global surveillance. States
are utilising technology in the most imaginative ways
particularly in view of increasing global terrorist attacks and
heightened public safety concerns. One such technique
being adopted by the States is “profiling”. The European
Union Regulation of 2016 [ Regulation No. (EU) 2016/679
of the European Parliament and of the Council of 27-4-

2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of
such data, and repealing Directive No. 95/46/EC (General
Data Protection Regulation).] on data privacy defines
“profiling” as any form of automated processing of personal
data consisting of the use of personal data to evaluate
certain personal aspects relating to a natural person, in
particular to analyse or predict aspects concerning that
natural person's performance at work, economic situation,
health, personal preferences, interests, reliability,
behaviour, location or movements [ Regulation No. (EU)
2016/679 of the European Parliament and of the Council of
27-4-2016 on the protection of natural persons with regard
to the processing of personal data and on the free
movement of such data, and repealing Directive No.
95/46/EC (General Data Protection Regulation).] . Such
profiling can result in discrimination based on religion,
ethnicity and caste. However, “profiling” can also be used
to further public interest and for the benefit of national
security.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 153 of 567

586. The security environment, not only in our country, but
throughout the world makes the safety of persons and the
State a matter to be balanced against this right to privacy.

587. The capacity of non-State actors to invade the home
and privacy has also been enhanced. Technological
development has facilitated journalism that is more
intrusive than ever before.

588. Further, in this digital age, individuals are constantly
generating valuable data which can be used by non-State
actors to track their moves, choices and preferences. Data
is generated not just by active sharing of information, but
also passively, with every click on the “world wide web”.
We are stated to be creating an equal amount of
information every other day, as humanity created from the
beginning of recorded history to the year 2003 — enabled
by the “world wide web”. [ Michael L. Rustad,
SannaKulevska, “Reconceptualizing the right to be
forgotten to enable transatlantic data flow”, (2015) 28 Harv
JL & Tech 349.]

589. Recently, it was pointed out that “ “Uber”, the world's
largest taxi company, owns no vehicles. “Facebook”, the
world's most popular media owner, creates no content.
“Alibaba”, the most valuable retailer, has no inventory. And
“Airbnb”, the world's largest accommodation provider, owns
no real estate. Something interesting is happening.” [ Tom
Goodwin “The Battle is for Customer Interface”,
<https://techcrunch.com/2015/03/03/in-the-age-of-
disintermediation-the-battle-is-all-for-the-customer-
interface/>.] “Uber” knows our whereabouts and the places
we frequent. “Facebook” at the least, knows who we are
friends with. “Alibaba” knows our shopping habits. “Airbnb”
knows where we are travelling to. Social network providers,
search engines, e-mail service providers, messaging
applications are all further examples of non-State actors
that have extensive knowledge of our movements, financial
transactions, conversations — both personal and
professional, health, mental state, interest, travel locations,
fares and shopping habits. As we move towards becoming
a digital economy and increase our reliance on internet-
based services, we are creating deeper and deeper digital
footprints — passively and actively.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 154 of 567

590. These digital footprints and extensive data can be
analysed computationally to reveal patterns, trends, and
associations, especially relating to human behaviour and
interactions and hence, is valuable information. This is the
age of “big data”. The advancement in technology has
created not just new forms of data, but also new methods
of analysing the data and has led to the discovery of new
uses for data. The algorithms are more effective and the
computational power has magnified exponentially. A large
number of people would like to keep such search history
private, but it rarely remains private, and is collected, sold
and analysed for purposes such as targeted advertising. Of
course, “big data” can also be used to further public
interest. There may be cases where collection and
processing of big data is legitimate and proportionate,
despite being invasive of privacy otherwise.

591. Knowledge about a person gives a power over that
person. The personal data collected is capable of effecting
representations, influencing decision-making processes
and shaping behaviour. It can be used as a tool to exercise
control over us like the “big brother” State exercised. This
can have a stultifying effect on the expression of dissent
and difference of opinion, which no democracy can afford.

592. Thus, there is an unprecedented need for regulation
regarding the extent to which such information can be
stored, processed and used by non-State actors. There is
also a need for protection of such information from the
State. Our Government was successful in compelling
Blackberry to give to it the ability to intercept data sent over
Blackberry devices. While such interception may be
desirable and permissible in order to ensure national
security, it cannot be unregulated. [ Kadhim Shubber,
“Blackberry gives Indian Government ability to intercept
messages” published by Wired on 11-7-2013
<http://www.wired.co.uk/article/blackberry-india>.]

593. The concept of “invasion of privacy” is not the early
conventional thought process of “poking ones nose in
another person's affairs”. It is not so simplistic. In today's
world, privacy is a limit on the Government's power as well
as the power of private sector entities. [ Daniel Solove, “10
Reasons Why Privacy Matters” published on 20-1-2014
<https://www.teachprivacy.com/10-reasons-privacy-
matters/>.]

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 155 of 567

594. George Orwell created a fictional State in Nineteen
Eighty-Four. Today, it can be a reality. The technological
development today can enable not only the State, but also
big corporations and private entities to be the “big brother”.

xx xx xx

629. The right of an individual to exercise control over his
personal data and to be able to control his/her own life
would also encompass his right to control his existence on
the internet. Needless to say that this would not be an
absolute right. The existence of such a right does not imply
that a criminal can obliterate his past, but that there are
variant degrees of mistakes, small and big, and it cannot
be said that a person should be profiled to the nth extent
for all and sundry to know.

630. A high school teacher was fired after posting on her
Facebook page that she was “so not looking forward to
another [school] year” since the school district's residents
were “arrogant and snobby”. A flight attendant was fired for
posting suggestive photos of herself in the company's
uniform. [ Patricia Sánchez Abril, “Blurred Boundaries:

Social Media Privacy and the Twenty-First-Century
Employee”, 49 Am Bus LJ 63 at p. 69 (2012).] In the pre-
digital era, such incidents would have never occurred.
People could then make mistakes and embarrass
themselves, with the comfort that the information will be
typically forgotten over time.

631. The impact of the digital age results in information on
the internet being permanent. Humans forget, but the
internet does not forget and does not let humans forget.
Any endeavour to remove information from the internet
does not result in its absolute obliteration. The footprints
remain. It is thus, said that in the digital world preservation
is the norm and forgetting a struggle [ Ravi Antani, “ THE
RESISTANCE OF MEMORY : COULD THE EUROPEAN UNION'S
RIGHT TO BE FORGOTTEN EXIST IN THE UNITED STATES?”, 30
Berkeley Tech LJ 1173 (2015).] .

632. The technology results almost in a sort of a
permanent storage in some way or the other making it
difficult to begin life again giving up past mistakes. People
are not static, they change and grow through their lives.
They evolve. They make mistakes. But they are entitled to
re-invent themselves and reform and correct their

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 156 of 567

mistakes. It is privacy which nurtures this ability and
removes the shackles of unadvisable things which may
have been done in the past.

633. Children around the world create perpetual digital
footprints on social network websites on a 24/7 basis as
they learn their “ABCs”: Apple, Bluetooth and chat followed
by download, e-mail, Facebook, Google, Hotmail and
Instagram. [ Michael L. Rustad, SannaKulevska,
“Reconceptualizing the right to be forgotten to enable
transatlantic data flow”, (2015) 28 Harv JL & Tech 349.]
They should not be subjected to the consequences of their
childish mistakes and naivety, their entire life. Privacy of
children will require special protection not just in the
context of the virtual world, but also the real world.

634. People change and an individual should be able to
determine the path of his life and not be stuck only on a
path of which he/she treaded initially. An individual should
have the capacity to change his/her beliefs and evolve as a
person. Individuals should not live in fear that the views
they expressed will forever be associated with them and
thus refrain from expressing themselves.

635. Whereas this right to control dissemination of personal
information in the physical and virtual space should not
amount to a right of total eraser of history, this right, as a
part of the larger right to privacy, has to be balanced
against other fundamental rights like the freedom of
expression, or freedom of media, fundamental to a
democratic society.

636. Thus, the European Union Regulation of 2016
[Regulation No. (EU) 2016/679 of the European Parliament
and of the Council of 27-4-2016 on the protection of natural
persons with regard to the processing of personal data and
on the free movement of such data, and repealing Directive
No. 95/46/EC (General Data Protection Regulation).] has
recognised what has been termed as “the right to be
forgotten”. This does not mean that all aspects of earlier
existence are to be obliterated, as some may have a social
ramification. If we were to recognise a similar right, it would
only mean that an individual who is no longer desirous of
his personal data to be processed or stored, should be
able to remove it from the system where the personal
data/information is no longer necessary, relevant, or is
incorrect and serves no legitimate interest. Such a right

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 157 of 567

cannot be exercised where the information/data is
necessary, for exercising the right of freedom of expression
and information, for compliance with legal obligations, for
the performance of a task carried out in public interest, on
the grounds of public interest in the area of public health,
for archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes, or for
the establishment, exercise or defence of legal claims.
Such justifications would be valid in all cases of breach of
privacy, including breaches of data privacy.”

(vi) Right to privacy cannot be impinged without a just, fair and

reasonable law: It has to fulfill the test of proportionality i.e. (i)

existence of a law; (ii) must serve a legitimate State aim; and (iii)

proportionality.

“Dr. D.Y. Chandrachud, J. :

310. While it intervenes to protect legitimate State
interests, the State must nevertheless put into place a
robust regime that ensures the fulfilment of a threefold
requirement. These three requirements apply to all
restraints on privacy (not just informational privacy). They
emanate from the procedural and content-based mandate
of
Article 21.
The first requirement that there must be a law
in existence to justify an encroachment on privacy is an
express requirement of
Article 21.
For, no person can be
deprived of his life or personal liberty except in accordance
with the procedure established by law. The existence of law
is an essential requirement. Second, the requirement of a
need, in terms of a legitimate State aim, ensures that the
nature and content of the law which imposes the restriction
falls within the zone of reasonableness mandated by
Article
, which is a guarantee against arbitrary State action. The
pursuit of a legitimate State aim ensures that the law does
not suffer from manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial review does
not reappreciate or second guess the value judgment of
the legislature but is for deciding whether the aim which is
sought to be pursued suffers from palpable or manifest
arbitrariness. The third requirement ensures that the
means which are adopted by the legislature are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 158 of 567

proportional to the object and needs sought to be fulfilled
by the law. Proportionality is an essential facet of the
guarantee against arbitrary State action because it ensures
that the nature and quality of the encroachment on the right
is not disproportionate to the purpose of the law. Hence,
the threefold requirement for a valid law arises out of the
mutual interdependence between the fundamental
guarantees against arbitrariness on the one hand and the
protection of life and personal liberty, on the other. The
right to privacy, which is an intrinsic part of the right to life
and liberty, and the freedoms embodied in Part III is subject
to the same restraints which apply to those freedoms.

311. Apart from national security, the State may have
justifiable reasons for the collection and storage of data. In
a social welfare State, the Government embarks upon
programmes which provide benefits to impoverished and
marginalised sections of society. There is a vital State
interest in ensuring that scarce public resources are not
dissipated by the diversion of resources to persons who do
not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the
utilisation of resources should not be siphoned away for
extraneous purposes. Data mining with the object of
ensuring that resources are properly deployed to legitimate
beneficiaries is a valid ground for the State to insist on the
collection of authentic data. But, the data which the State
has collected has to be utilised for legitimate purposes of
the State and ought not to be utilised unauthorisedly for
extraneous purposes. This will ensure that the legitimate
concerns of the State are duly safeguarded while, at the
same time, protecting privacy concerns. Prevention and
investigation of crime and protection of the revenue are
among the legitimate aims of the State. Digital platforms
are a vital tool of ensuring good governance in a social
welfare State. Information technology—legitimately
deployed is a powerful enabler in the spread of innovation
and knowledge.

312. A distinction has been made in contemporary
literature between anonymity on one hand and privacy on
the other. [See in this connection, Jeffrey M. Skopek,
“Reasonable Expectations of Anonymity”, Virginia Law
Review (2015), Vol. 101, at pp. 691-762.] Both anonymity
and privacy prevent others from gaining access to pieces
of personal information yet they do so in opposite ways.

Privacy involves hiding information whereas anonymity

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 159 of 567

involves hiding what makes it personal. An unauthorised
parting of the medical records of an individual which have
been furnished to a hospital will amount to an invasion of
privacy. On the other hand, the State may assert a
legitimate interest in analysing data borne from hospital
records to understand and deal with a public health
epidemic such as malaria or dengue to obviate a serious
impact on the population. If the State preserves the
anonymity of the individual it could legitimately assert a
valid State interest in the preservation of public health to
design appropriate policy interventions on the basis of the
data available to it.

313. Privacy has been held to be an intrinsic element of the
right to life and personal liberty under
Article 21
and as a
constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution. Like the
right to life and liberty, privacy is not absolute. The
limitations which operate on the right to life and personal
liberty would operate on the right to privacy. Any
curtailment or deprivation of that right would have to take
place under a regime of law. The procedure established by
law must be fair, just and reasonable. The law which
provides for the curtailment of the right must also be
subject to constitutional safeguards.

xx xx xx

325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under
Article 21
, privacy is not an absolute
right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of
Article 21
an invasion
of privacy must be justified on the basis of a law which
stipulates a procedure which is fair, just and reasonable.
The law must also be valid with reference to the
encroachment on life and personal liberty under
Article 21.

An invasion of life or personal liberty must meet the
threefold requirement of (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.

S.A. Bobde, J. :

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 160 of 567

426. There is no doubt that privacy is integral to the several
fundamental rights recognised by Part III of the Constitution
and must be regarded as a fundamental right itself. The
relationship between the right to privacy and the particular
fundamental right (or rights) involved would depend on the
action interdicted by a particular law. At a minimum, since
privacy is always integrated with personal liberty, the
constitutionality of the law which is alleged to have invaded
into a rights bearer's privacy must be tested by the same
standards by which a law which invades personal liberty
under
Article 21
is liable to be tested. Under
Article 21
, the
standard test at present is the rationality review expressed
in
Maneka Gandhi
case [
Maneka Gandhi v. Union of India
,
(1978) 1 SCC 248] .
This requires that any procedure by
which the State interferes with an Article 21 right to be “fair,
just and reasonable, not fanciful, oppressive or arbitrary”
[Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at p.

323, para 48].

R.F. Nariman, J. :

526. But this is not to say that such a right is absolute. This
right is subject to reasonable regulations made by the State
to protect legitimate State interests or public interest.

However, when it comes to restrictions on this right, the drill
of various articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under

Article 21
read with
Article 14
if it is arbitrary and
unreasonable; and under
Article 21
read with
Article 19(1)

(a) only if it relates to the subjects mentioned in
Article
19(2)
and the tests
laid down by
this Court for such
legislation or subordinate legislation to pass muster under
the said article. Each of the tests evolved by this Court, qua
legislation or executive action, under
Article 21
read with

Article 14;
or
Article 21
read with
Article 19(1)(a)
in the
aforesaid examples must be met in order that State action
pass muster. In the ultimate analysis, the balancing act that
is to be carried out between individual, societal and State
interests must be left to the training and expertise of the
judicial mind.

S.K. Kaul, J. :

638. The concerns expressed on behalf of the petitioners
arising from the possibility of the State infringing the right to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 161 of 567

privacy can be met by the test suggested for limiting the
discretion of the State:

“(i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;

(iii) The extent of such interference must be proportionate
to the need for such interference;

(iv) There must be procedural guarantees against abuse of
such interference.”

Chelameswar, J.:

377. It goes without saying that no legal right can be
absolute. Every right has limitations. This aspect of the
matter is conceded at the Bar. Therefore, even a
fundamental right to privacy has limitations. The limitations
are to be identified on case-to-case basis depending upon
the nature of the privacy interest claimed. There are
different standards of review to test infractions of
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles
(even if only slightly differently across some of them).

Having emphatically interpreted the Constitution's liberty
guarantee to contain a fundamental right to privacy, it is
necessary for me to outline the manner in which such a
right to privacy can be limited. I only do this to indicate the
direction of the debate as the nature of limitation is not at
issue here.

378. To begin with, the options canvassed for limiting the
right to privacy include an
Article 14
type reasonableness
enquiry [A challenge under
Article 14
can be made if there
is an unreasonable classification and/or if the impugned
measure is arbitrary. The classification is unreasonable if
there is no intelligible differentia justifying the classification
and if the classification has no rational nexus with the
objective sought to be achieved. Arbitrariness, which was
first explained at para 85 of
E.P. Royappa v. State of T.N.
,
(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555,
is very simply the lack of any reasoning.] ; limitation as per
the express provisions of
Article 19;
a just, fair and
reasonable basis (that is, substantive due process) for
limitation per
Article 21;
and finally, a just, fair and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 162 of 567

reasonable standard per
Article 21
plus the amorphous
standard of “compelling State interest”.
The last of these
four options is the highest standard of scrutiny [ A tiered
level of scrutiny was indicated in what came to be known
as the most famous footnote in constitutional law, that is, fn
4 in United States v. Carolene Products Co., 1938 SCC
OnLine US SC 93 : 82 L Ed 1234 : 304 US 144 (1938).
Depending on the graveness of the right at stake, the court
adopts a correspondingly rigorous standard of scrutiny.]
that a court can adopt. It is from this menu that a standard
of review for limiting the right to privacy needs to be
chosen.

379. At the very outset, if a privacy claim specifically flows
only from one of the expressly enumerated provisions
under
Article 19
, then the standard of review would be as
expressly provided under
Article 19.
However, the
possibility of a privacy claim being entirely traceable to
rights other than
Article 21
is bleak. Without discounting
that possibility, it needs to be noted that
Article 21
is the
bedrock of the privacy guarantee. If the spirit of liberty
permeates every claim of privacy, it is difficult, if not
impossible, to imagine that any standard of limitation other
than the one under
Article 21
applies. It is for this reason
that I will restrict the available options to the latter two from
the above described four.

380. The just, fair and reasonable standard of review under

Article 21
needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.
[
District Registrar and Collector v. Canara Bank
, (2005) 1
SCC 496 :
AIR 2005 SC 186] , [State of Maharashtra v.
Bharat Shanti Lal Shah
, (2008) 13 SCC 5] Gobind [Gobind
v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468]
resorted to the compelling State interest standard in
addition to the
Article 21
reasonableness enquiry. From the
United States, where the terminology of “compelling State
interest” originated, a strict standard of scrutiny comprises
two things—a “compelling State interest” and a
requirement of “narrow tailoring” (narrow tailoring means
that the law must be narrowly framed to achieve the
objective). As a term, “compelling State interest” does not
have definite contours in the US. Hence, it is critical that
this standard be adopted with some clarity as to when and
in what types of privacy claimsit is to be used. Only in
privacy claims which deserve the strictest scrutiny is the
standard of compelling State interest to be used. As for

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 163 of 567

others, the just, fair and reasonable standard under
Article
will apply. When the compelling State interest standard
is to be employed, must depend upon the context of
concrete cases. However, this discussion sets the ground
rules within which a limitation for the right to privacy is to be
found.”

82) In view of the aforesaid detailed discussion in all the opinions

penned by six Hon’ble Judges, it stands established, without any

pale of doubt, that privacy has now been treated as part of

fundamental rights. The Court has held, in no uncertain terms,

that privacy has always been a natural right which gives an

individual freedom to exercise control over his or her personality.

The judgment further affirms three aspects of the fundamental

right to privacy, namely:

(i) intrusion with an individual’s physical body;

(ii) informational privacy; and

(iii) privacy of choice.

83) As succinctly put by Nariman, J. first aspect involves the person

himself/herself and guards a person’s rights relatable to his/her

physical body thereby controlling the uncalled invasion by the

State. Insofar as the second aspect, namely, informational

privacy is concerned, it does not deal with a person’s body but

deals with a person’s mind. In this manner, it protects a person

by giving her control over the dissemination of material that is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 164 of 567

personal to her and disallowing unauthorised use of such

information by the State. Third aspect of privacy relates to

individual’s autonomy by protecting her fundamental personal

choices. These aspects have functional connection and

relationship with dignity. In this sense, privacy is a postulate of

human dignity itself. Human dignity has a constitutional value

and its significance is acknowledged by the Preamble. Further,

by catena of judgments, human dignity is treated as a

fundamental right and as a facet not only of
Article 21
but that of

right to equality (
Article 14
) and also part of bouquet of freedoms

stipulated in
Article 19.
Therefore, privacy as a right is intrinsic of

freedom, liberty and dignity. Viewed in this manner, one can

trace positive and negative contents of privacy. The negative

content restricts the State from committing an intrusion upon the

life and personal liberty of a citizen. Its positive content imposes

an obligation on the State to take all necessary measures to

protect the privacy of the individual.

84) A brief summation of the judgment on privacy would indicate that

privacy is treated as fundamental right. It is predicated on the

basis that privacy is a postulate of dignity and the concept of

dignity can be traced to the preamble of the Constitution as well

as
Article 21
thereof. Further, privacy is considered as a subset

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 165 of 567

of personal liberty thereby accepting the minority opinion in

Kharak Singh v. State of U.P. & Ors.29 Another
significant

jurisprudential development of this judgment is that right to

privacy as a fundamental right is not limited to
Article 21.
On the

contrary, privacy resonates through the entirety of Part III of the

Constitution which pertains to fundamental rights and, in

particular,
Articles 14
, 19
and
21.
Privacy is also recognised as a

natural right which inheres in individuals and is, thus, inalienable.

In developing the aforesaid concepts, the Court has been

receptive to the principles in international law and international

instruments. It is a recognition of the fact that certain human

rights cannot be confined within the bounds of geographical

location of a nation but have universal application. In the

process, the Court accepts the concept of universalisation of

human rights, including the right to privacy as a human right and

the good practices in developing and understanding such rights in

other countries have been welcomed. In this hue, it can also be

remarked that comparative law has played a very significant role

in shaping the aforesaid judgment on privacy in Indian context,

notwithstanding the fact that such comparative law has only a

persuasive value.

29 AIR 1963 SC 1295

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 166 of 567

85) The whole process of reasoning contained in different opinions of

the Hon’ble Judges would, thus, reflect that the argument that it is

difficult to precisely define the common denominator of privacy,

was rejected. While doing so, the Court referred to various

approaches in formulating privacy30. An astute and sagacious

analysis of the judgment by the Centre for Internet and Society

brings about the following approaches which contributed to

formulating the following right to privacy:

(a) Classifying privacy on the basis of ‘harms’, thereby adopting

the approach conceptualised by Daniel Solove. In his book,

Understanding Privacy31, Daniel Solove makes a case for privacy

being a family resemblance concept.

(b) Classifying privacy on the basis of ‘interests’: Gary

Bostwick’s taxonomy of privacy is among the most prominent

amongst the scholarship that sub-areas within the right to privacy

protect different ‘interests’ or ‘justifications’. This taxonomy is

adopted in Chelameswar, J.’s definition of ‘privacy’ and includes

the three interests of privacy of repose, privacy of sanctuary and

privacy of intimate decision. Repose is the ‘right to be let alone’,

sanctuary is the interest which prevents others from knowing,

30 See the analysis of this judgment by the Centre for Internet and Society, https://cis-
india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis
31 Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard University Press,
2008.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 167 of 567

seeing and hearing thus keeping information within the private

zone, and finally, privacy of intimate decision protects the

freedom to act autonomously.

(c) Classifying privacy as an ‘aggregation of rights’: This

approach in classifying privacy as a right, as highlighted above, is

not limited to one particular provision in the Chapter of

Fundamental Rights under the Constitution but is associated with

amalgam of different but connected rights. In formulating this

principle, the Court has referred to scholars like Roger Clarke,

Anita Allen etc. It has led to the recognition of private spaces or

zones as protected under the right to privacy (thereby extending

the ambit and scope of spatial privacy), informational privacy and

decisional autonomy.

86) The important question that arises, which is directly involved in

these cases, is:

What is the scope of the right to privacy and in what

circumstances such a right can be limited?

87) Concededly, fundamental rights are not absolute. The

Constitution itself permits State to impose reasonable restrictions

on these rights under certain circumstances. Thus, extent and

scope of the right to privacy and how and when it can be limited

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 168 of 567

by the State actions is also to be discerned. As noted above,

Nariman, J. has led the path by observing that “when it comes to

restrictions on this right, the drill of various Articles to which the

right relates must be scrupulously followed”. Therefore,

examination has to be from the point of view of
Articles 14
, 19

and
for the reason that right to privacy is treated as having

intimate connection to various rights in Part III and is not merely

related to
Article 21.
Looked from this angle, the action of the

State will have to be tested on the touchstone of
Article 14.
This

judgment clarifies that the ‘classification’ test adopted earlier has

to be expanded and instead the law/action is to be tested on the

ground of ‘manifest arbitrariness’. This aspect has already been

discussed in detail under the caption ‘Scope of Judicial Review’

above. When it comes to examining the ‘restrictions’ as per the

provisions of
Article 19
of the Constitution, the judgment proceeds

to clarify that a law which impacts dignity and liberty under
Article
, as well as having chilling effects on free speech which is

protected by
Article 19(1)(a)
, must satisfy the standards of judicial

review under both provisions. Therefore, such restriction must

satisfy the test of judicial review under: (i) one of the eight

grounds mentioned under
Article 19(2);
and (ii) the restriction

should be reasonable. This Court has applied multiple standards

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 169 of 567

to determine reasonableness, including proximity, arbitrariness,

and proportionality. Further, the reasonable restrictions must be

in the interests of: (i) the sovereignty and integrity of India, (ii) the

security of the State, (iii) friendly relations with foreign States, (iv)

public order, (v) decency or morality or (vi) in relation to contempt

of court, (vii) defamation or (viii) incitement to an offence.

88) The judgment further lays down that in the context of
Article 21
,

the test to be applied while examining a particular provision is the

‘just, fair and reasonable test’ thereby bringing notion of

proportionality.

89) The petitioners have sought to build their case on the aforesaid

parameters of privacy and have submitted that this right of

privacy, which is now recognised as a fundamental right, stands

violated by the very fabric contained in the scheme of Aadhaar. It

is sought to be highlighted that the data which is collected by the

State, particularly with the authentication of each transaction

entered into by an individual, can be assimilated to construct a

profile of such an individual and it particularly violates

informational privacy. No doubt, there can be reasonable

restrictions on this right, which is conceded by the petitioners. It

is, however, argued that right to privacy cannot be impinged

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 170 of 567

without a just, fair and reasonable law. Therefore, in the first

instance, any intrusion into the privacy of a person has to be

backed by a law. Further, such a law, to be valid, has to pass the

test of legitimate aim which it should serve and also

proportionality i.e. proportionate to the need for such interference.

Not only this, the law in question must also provide procedural

guarantees against abuse of such interference.

90) At the same time, it can also be deduced from the reading of the

aforesaid judgment that the reasonable expectation of privacy

may vary from the intimate zone to the private zone and from the

private zone to the public arena. Further, privacy is not lost or

surrendered merely because the individual is in a public place.

For example, if a person was to post on Facebook vital

information about himself, the same being in public domain, he

would not be entitled to claim privacy right. This aspect is

highlighted by some of the Hon’ble Judges as under:

Dr. D.Y. Chandrachud, J.:

“297. What, then, does privacy postulate? Privacy
postulates the reservation of a private space for the
individual, described as the right to be let alone. The
concept is founded on the autonomy of the individual. The
ability of an individual to make choices lies at the core of
the human personality. The notion of privacy enables the
individual to assert and control the human element which is
inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 171 of 567

the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns
over which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the human
personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual
possesses an inalienable ability and right to preserve a
private space in which the human personality can develop.
Without the ability to make choices, the inviolability of the
personality would be in doubt. Recognising a zone of
privacy is but an acknowledgment that each individual must
be entitled to chart and pursue the course of development
of personality. Hence privacy is a postulate of human
dignity itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of
privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals
to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal
demands of homogeneity. Privacy is an intrinsic recognition
of heterogeneity, of the right of the individual to be different
and to stand against the tide of conformity in creating a
zone of solitude. Privacy protects the individual from the
searching glare of publicity in matters which are personal to
his or her life. Privacy attaches to the person and not to the
place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a
pattern woven out of a thread of diversity into the fabric of a
plural culture.

xx xx xx

299. Privacy represents the core of the human personality
and recognises the ability of each individual to make
choices and to take decisions governing matters intimate
and personal. Yet, it is necessary to acknowledge that
individuals live in communities and work in communities.

Their personalities affect and, in turn are shaped by their
social environment. The individual is not a hermit. The lives
of individuals are as much a social phenomenon. In their
interactions with others, individuals are constantly engaged
in behavioural patterns and in relationships impacting on

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 172 of 567

the rest of society. Equally, the life of the individual is being
consistently shaped by cultural and social values imbibed
from living in the community. This state of flux which
represents a constant evolution of individual personhood in
the relationship with the rest of society provides the
rationale for reserving to the individual a zone of repose.
The lives which individuals lead as members of society
engender a reasonable expectation of privacy. The notion
of a reasonable expectation of privacy has elements both
of a subjective and objective nature. Privacy at a subjective
level is a reflection of those areas where an individual
desires to be left alone. On an objective plane, privacy is
defined by those constitutional values which shape the
content of the protected zone where the individual ought to
be left alone. The notion that there must exist a reasonable
expectation of privacy ensures that while on the one hand,
the individual has a protected zone of privacy, yet on the
other, the exercise of individual choices is subject to the
rights of others to lead orderly lives. For instance, an
individual who possesses a plot of land may decide to build
upon it subject to zoning regulations. If the building bye-
laws define the area upon which construction can be raised
or the height of the boundary wall around the property, the
right to privacy of the individual is conditioned by
regulations designed to protect the interests of the
community in planned spaces. Hence while the individual is
entitled to a zone of privacy, its extent is based not only on
the subjective expectation of the individual but on an
objective principle which defines a reasonable expectation.

xx xx xx

307. The sphere of privacy stretches at one end to those
intimate matters to which a reasonable expectation of
privacy may attach. It expresses a right to be left alone. A
broader connotation which has emerged in academic
literature of a comparatively recent origin is related to the
protection of one's identity. Data protection relates closely
with the latter sphere. Data such as medical information
would be a category to which a reasonable expectation of
privacy attaches. There may be other data which falls
outside the reasonable expectation paradigm. Apart from
safeguarding privacy, data protection regimes seek to
protect the autonomy of the individual. This is evident from
the emphasis in the European data protection regime on
the centrality of consent. Related to the issue of consent is
the requirement of transparency which requires a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 173 of 567

disclosure by the data recipient of information pertaining to
data transfer and use.”

S.A. Bobde, J:

“421. Shri Rakesh Dwivedi, appearing for the State of
Gujarat, while referring to several judgments of the
Supreme Court of the United States, submitted that only
those privacy claims which involve a “reasonable
expectation of privacy” be recognised as protected by the
fundamental right. It is not necessary for the purpose of this
case to deal with the particular instances of privacy claims
which are to be recognised as implicating a fundamental
right. Indeed, it would be premature to do so. The scope
and ambit of a constitutional protection of privacy can only
be revealed to us on a case-by-case basis.”

91) Though Nariman, J. did not subscribe to the aforesaid view in

totality, however, His Lordship has also given an example that if a

person has to post on Facebook vital information, the same being

in public domain, she would not be entitled to the claim of privacy

right.

92) We would also like to reproduce following discussion, in the

opinion authored by Nariman, J., giving the guidance as to how a

law has to be tested when it is challenged on the ground that it

violates the fundamental right to privacy:

“...Statutory provisions that deal with aspects of privacy would
continue to be tested on the ground that they would violate the
fundamental right to privacy, and would not be struck down, if it
is found on a balancing test that the social or public interest and
the reasonableness of the restrictions would outweigh the
particular aspect of privacy claimed. If this is so, then statutes
which would enable the State to contractually obtain information
about persons would pass muster in given circumstances,
provided they safeguard the individual right to privacy as well. A

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 174 of 567

simple example would suffice. If a person was to paste on
Facebook vital information about himself/herself, such
information, being in the public domain, could not possibly be
claimed as a privacy right after such disclosure. But, in
pursuance of a statutory requirement, if certain details need to
be given for the statutory purpose concerned, then such details
would certainly affect the right to privacy, but would on a
balance, pass muster as the State action concerned has
sufficient inbuilt safeguards to protect this right—viz. the fact
that such information cannot be disseminated to anyone else,
save on compelling grounds of public interest.”

93) One important comment which needs to be made at this stage

relates to the standard of judicial review while examining the

validity of a particular law that allegedly infringes right to privacy.

The question is as to whether the Court is to apply ‘strict scrutiny’

standard or the ‘just, fair and reasonableness’ standard. In the

privacy judgment, different observations are made by different

Hon’ble Judges and the aforesaid aspect is not determined

authoritatively, may be for the reason that the Bench was

deciding the reference on the issue as to whether right to privacy

is a fundamental right or not and, in the process, it was called

upon to decide the specific questions referred to it. We have

dealt with this aspect at the appropriate stage.

Principles of Human Dignity:

94) While undertaking the analysis of the judgment in K.S.

Puttaswamy, we have mentioned that one of the attributes laid

down therein is that the sanctity of privacy lies in its functional

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 175 of 567

relationship with dignity. Privacy is the constitutional core of

human dignity. In the context of Aadhaar scheme how the

concept of human dignity is to be applied assumes significance.

95) In
Common Cause v. Union of India32
, the concept of human

dignity has been explained in much detail 33. The concept of

human dignity developed in
the said judgment
was general in

nature which is based on right to autonomy and right of choice

and it has become a constitutional value. In the last 40 years or

so, this Court has given many landmark judgments wherein

concept of human dignity is recognised as an attribute of

fundamental rights. In the earlier years, though the meaning and

scope of human dignity by itself was not expanded, this exercise

has been undertaken in last few years. Earlier judgments have

mentioned that human dignity is the intrinsic value of every

human being and, in the process, a person’s autonomy as an

attribute of dignity stands recognised. The judgments rendered in

the last few years have attempted to provide jurisprudential basis

to the concept of human dignity itself.

96) In
National Legal Services Authority v. Union of India & Ors.
while recognising the right of transgenders of self determination

32 (2018) 5 SCC 1
33 See paras 72-79 of the judgment
34 (2014) 5 SCC 438

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 176 of 567

of their sex, the Court explained the contours of human dignity in

the following words:

“106. The basic principle of the dignity and freedom of the
individual is common to all nations, particularly those
having democratic set up. Democracy requires us to
respect and develop the free spirit of human being which is
responsible for all progress in human history. Democracy
is also a method by which we attempt to raise the living
standard of the people and to give opportunities to every
person to develop his/her personality. It is founded on
peaceful co-existence and cooperative living. If democracy
is based on the recognition of the individuality and dignity
of man, as a fortiori we have to recognize the right of a
human being to choose his sex/gender identity which is
integral to his/her personality and is one of the most basic
aspect of self-determination, dignity and freedom. In fact,
there is a growing recognition that the true measure of
development of a nation is not economic growth; it is
human dignity.

107. More than 225 years ago, Immanuel Kant
propounded the doctrine of free will, namely, the free willing
individual as a natural law ideal. Without going into the
detailed analysis of his aforesaid theory of justice (as we
are not concerned with the analysis of his jurisprudence)
what we want to point out is his emphasis on the “freedom”
of human volition. The concepts of volition and freedom are
“pure”, that is not drawn from experience. They are
independent of any particular body of moral or legal rules.

They are presuppositions of all such rules, valid and
necessary for all of them.

108. Over a period of time, two divergent interpretations of
the Kantian criterion of justice came to be discussed. One
trend was an increasing stress on the maximum of
individual freedom of action as the end of law. This may not
be accepted and was criticised by the protagonist of
“hedonist utilitarianism”, notably Bentham. This school of
thought laid emphasis on the welfare of the society rather
than an individual by propounding the principle of
maximum of happiness to most of the people. Fortunately,
in the instant case, there is no such dichotomy between the
individual freedom/liberty we are discussing, as against
public good. On the contrary, granting the right to choose
gender leads to public good. The second tendency of the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 177 of 567

Kantian criterion of justice was found in reinterpreting
“freedom” in terms not merely of absence of restraint
but in terms of attainment of individual perfection. It is
this latter trend with which we are concerned in the present
case and this holds good even today. As pointed out
above, after the Second World War, in the form of the UN
Charter and thereafter there is more emphasis on the
attainment of individual perfection. In that united sense at
least there is a revival of the natural law theory of justice.
Blackstone, in the opening pages in his “Vattelian Fashion”
said that the principal aim of society “is to protect
individuals in the enjoyment of those absolute rights which
were vested in them by the immutable laws of nature….”

97) Thus, right of choice and right of self determination were

accepted as facets of human dignity. It was also emphasised that

in certain cases, like the case at hand (that of transgenders),

recognition of this aspect of human dignity would yield happiness

to the individuals and, at the same time, also be in public good.

98) Advancement in conceptualising the doctrine of human dignity

took place in the case of
Shabnam v. Union of India & Ors.
wherein this Court has gone to the extent of protecting certain

rights of death convicts by holding that they cannot be executed

till they exhaust all available constitutional and statutory

remedies. In the process, the Court held as under:

““15. This right to human dignity has many elements. First
and foremost, human dignity is the dignity of each human
being 'as a human being'. Another element, which needs
to be highlighted, in the context of the present case, is that
human dignity is infringed if a person's life, physical or
mental welfare is harmed. It is in this sense torture,

35 (2015) 6 SCC 702

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 178 of 567

humiliation, forced labour, etc. all infringe on human dignity.

It is in this context many rights of the accused derive from
his dignity as a human being. These may include the
presumption that every person is innocent until proven
guilty; the right of the accused to a fair trial as well as
speedy trial; right of legal aid, all part of human dignity.
Even after conviction, when a person is spending prison
life, allowing humane conditions in jail is part of human
dignity. Prisons reforms or Jail reforms measures to make
convicts a reformed person so that they are able to lead
normal life and assimilate in the society, after serving the
jail term, are motivated by human dignity jurisprudence.

16. In fact, this principle of human dignity has been used
frequently by Courts in the context of considering the death
penalty itself. Way back in the year 1972, the United States
Supreme Court kept in mind this aspect in the case of
Furman v. Georgia 408 US 238 (1972). The Court,
speaking through Brennan, J., while considering the
application of Eighth Amendment's prohibition on cruel and
unusual punishments, summed up the previous
jurisprudence on the Amendment as 'prohibit(ing) the
infliction of uncivilized and inhuman punishments. The
State, even as it punishes, must treat its members with
respect for their intrinsic worth as human beings. A
punishment is 'cruel and unusual', therefore, if it does not
comport with human dignity'. In Gregg v. Georgia 428 US
153 (1976), that very Court, again through Brennan, J.,
considered that 'the fatal constitutional infirmity in the
punishment of death is that it treats “members of the
human race as non-humans, as objects to be toyed with an
discarded. (It is), thus, inconsistent with the fundamental
premise of the clause that even the vilest criminal remains
a human being possessed of common human dignity'. The
Canadian Supreme Court, the Hungarian Constitutional
Court and the South African Supreme Court have gone to
the extent of holding that capital punishment constitutes a
serious impairment of human dignity and imposes a
limitation on the essential content of the fundamental rights
to life and human dignity and on that touchstone declaring
that dignity as unconstitutional.”

99) Next judgment in this line of cases would be that of
Jeeja Ghosh

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 179 of 567

& Another v. Union of India & Ors.36
wherein the Court, while

expanding the jurisprudential basis, outlined three models of

dignity which have been discussed by us above. These were

referred to while explaining the normative role of human dignity,

alongside, in the following manner:

“37. The rights that are guaranteed to differently-abled
persons under the 1995 Act, are founded on the sound
principle of human dignity which is the core value of human
right and is treated as a significant facet of right to life and
liberty. Such a right, now treated as human right of the
persons who are disabled, has it roots in
Article 21
of the
Constitution. Jurisprudentially, three types of models for
determining the content of the constitutional value of
human dignity are recognised. These are: (i) Theological
Models, (ii) Philosophical Models, and (iii) Constitutional
Models. Legal scholars were called upon to determine the
theological basis of human dignity as a constitutional value
and as a constitutional right. Philosophers also came out
with their views justifying human dignity as core human
value. Legal understanding is influenced by theological and
philosophical views, though these two are not identical.
Aquinas and Kant discussed the jurisprudential aspects of
human dignity based on the aforesaid philosophies. Over a
period of time, human dignity has found its way through
constitutionalism, whether written or unwritten. Even right
to equality is interpreted based on the value of human
dignity. Insofar as India is concerned, we are not even
required to take shelter under theological or philosophical
theories. We have a written Constitution which guarantees
human rights that are contained in Part III with the caption
“Fundamental Rights”. One such right enshrined in
Article
is right to life and liberty. Right to life is given a
purposeful meaning by this Court to include right to live
with dignity. It is the purposive interpretation which has
been adopted by this Court to give a content of the right to
human dignity as the fulfilment of the constitutional value
enshrined in
Article 21.
Thus, human dignity is a
constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is

36 (2016) 7 SCC 761

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 180 of 567

beautifully illustrated by Aharon Barak (former Chief Justice
of the Supreme Court of Israel) in the following manner:

“The constitutional value of human dignity has a
central normative role. Human dignity as a
constitutional value is the factor that unites the human
rights into one whole. It ensures the normative unity
of human rights. This normative unity is expressed in
the three ways: first, the value of human dignity
serves as a normative basis for constitutional rights
set out in the Constitution; second, it serves as an
interpretative principle for determining the scope of
constitutional rights, including the right to human
dignity; third, the value of human dignity has an
important role in determining the proportionality of a
statute limiting a constitutional right.”

38. All the three goals of human dignity as a constitutional
value are expanded by the author in a scholarly manner.

Some of the excerpts thereof, are reproduced below which
give a glimpse of these goals:

“The first role of human dignity as a constitutional
value is expressed in the approach that it comprises
the foundation for all of the constitutional rights.
Human dignity is the central argument for the
existence of human rights. It is the rationale for them
all. It is the justification for the existence of rights.
According to Christoph Enders, it is the constitutional
value that determines that every person has the right
to have rights…

The second role of human dignity as a constitutional
value is to provide meaning to the norms of the legal
system. According to purposive interpretation, all of
the provisions of the Constitution, and particularly all
of the rights in the constitutional bill of rights, are
interpreted in light of human dignity…

Lastly, human dignity as a constitutional value
influences the development of the common law.
Indeed, where common law is recognised, Judges
have the duty to develop it, and if necessary, modify
it, so that it expresses constitutional values, including
the constitutional value of human dignity. To the
extent that common law determines rights and duties
between individuals, it might limit the human dignity of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 181 of 567

one individual and protect the human dignity of the
other.”

100) The concept was developed and expanded further in K.S.

Puttaswamy. The Court held that privacy postulates the

reservation of a private space for an individual, described as the

right to be let alone, as a concept founded on autonomy of the

individual. In this way, right to privacy has been treated as a

postulate of human dignity itself. While defining so, the Court

also remarked as under:

“298. Privacy of the individual is an essential aspect of
dignity. Dignity has both an intrinsic and instrumental value.
As an intrinsic value, human dignity is an entitlement or a
constitutionally protected interest in itself. In its
instrumental facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool to achieve the
other. The ability of the individual to protect a zone of
privacy enables the realisation of the full value of life and
liberty... The family, marriage, procreation and sexual
orientation are all integral to the dignity of the individual.
Above all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be
exercised...”

101) This concept of dignity took a leap forwarded in the case of

Common Cause v. Union of India37
pertaining to passive

euthanasia.

Though this right was earlier recognised in
Aruna

Ramachandra Shanbaug v. Union of India & Ors.38
, a totally new

dimension was given to this right, based on freedom of choice

37 (2018) 5 SCC 1
38 (2011) 4 SCC 454

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 182 of 567

which is to be given to an individual accepting his dignity. There

were four concurring opinions. In one of the opinions 39, the

aspects of dignity are succinctly brought out in the following

manner:

“154. Dignity of an individual has been internationally
recognised as an important facet of human rights in the
year 1948 itself with the enactment of the Universal
Declaration of Human Rights. Human dignity not only finds
place in the Preamble of this important document but also
in
Article 1
of the same. It is well known that the principles
set out in UDHR are of paramount importance and are
given utmost weightage while interpreting human rights all
over the world. The first and foremost responsibility fixed
upon the State is the protection of human dignity without
which any other right would fall apart. Justice Brennan in
his book The Constitution of the United States:

Contemporary Ratification has referred to the Constitution
as “a sparkling vision of the supremacy of the human
dignity of every individual”.

155. In fact, in Christine Goodwin v. United Kingdom the
European Court of Human Rights, speaking in the context
of the Convention for the Protection of Human Rights and
Fundamental Freedoms, has gone to the extent of stating
that “the very essence of the Convention is respect for
human dignity and human freedom”. In the South African
case of S. v. Makwanyane, O’Regan, J. stated in the
Constitutional Court that “without dignity, human life is
substantially diminished”.

xx xx xx

157. The concept and value of dignity requires further
elaboration since we are treating it as an inextricable facet
of right to life that respects all human rights that a person
enjoys. Life is basically self-assertion. In the life of a
person, conflict and dilemma are expected to be normal
phenomena. Oliver Wendell Holmes, in one of his
addresses, quoted a line from a Latin poet who had uttered
the message, “Death plucks my ear and says, Live—I am
coming”. That is the significance of living. But when a
39 Rendered by Dipak Misra, CJI

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 183 of 567

patient really does not know if he/she is living till death
visits him/her and there is constant suffering without any
hope of living, should one be allowed to wait? Should
she/he be cursed to die as life gradually ebbs out from
her/his being? Should she/he live because of innovative
medical technology or, for that matter, should he/she
continue to live with the support system as people around
him/her think that science in its progressive invention may
bring about an innovative method of cure? To put it
differently, should he/she be “Guinea pig” for some kind of
experiment? The answer has to be an emphatic “No”
because such futile waiting mars the pristine concept of
life, corrodes the essence of dignity and erodes the fact of
eventual choice which is pivotal to privacy.

xx xx xx

159.
In
Mehmood Nayyar Azam v. State of Chhattisgarh
, a
two-Judge Bench held thus: (SCC p. 6, para 1)

“1. … Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, “the
reverence of life offers me my fundamental principle
on morality”. The aforesaid expression may appear to
be an individualistic expression of a great personality,
but, when it is understood in the complete sense, it
really denotes, in its conceptual essentiality, and
connotes, in its macrocosm, the fundamental
perception of a thinker about the respect that life
commands. The reverence of life is insegregably
associated with the dignity of a human being who is
basically divine, not servile. A human personality is
endowed with potential infinity and it blossoms when
dignity is sustained. The sustenance of such dignity
has to be the superlative concern of every sensitive
soul. The essence of dignity can never be treated as
a momentary spark of light or, for that matter, “a brief
candle”, or “a hollow bubble”.
The spark of life gets
more resplendent when man is treated with dignity
sans humiliation, for every man is expected to lead an
honourable life which is a splendid gift of “creative
intelligence”.”

xx xx xx

166. The purpose of saying so is only to highlight that the
law must take cognizance of the changing society and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 184 of 567

march in consonance with the developing concepts. The
need of the present has to be served with the interpretative
process of law. However, it is to be seen how much
strength and sanction can be drawn from the Constitution
to consummate the changing ideology and convert it into a
reality. The immediate needs are required to be addressed
through the process of interpretation by the Court unless
the same totally falls outside the constitutional framework
or the constitutional interpretation fails to recognise such
dynamism. The Constitution Bench in
Gian Kaur [Gian
Kaur v. State of Punjab
, (1996) 2 SCC 648 : 1996 SCC
(Cri) 374] , as stated earlier, distinguishes attempt to
suicide and abetment of suicide from acceleration of the
process of natural death which has commenced. The
authorities, we have noted from other jurisdictions, have
observed the distinctions between the administration of
lethal injection or certain medicines to cause painless
death and non-administration of certain treatment which
can prolong the life in cases where the process of dying
that has commenced is not reversible or withdrawal of the
treatment that has been given to the patient because of the
absolute absence of possibility of saving the life. To
explicate, the first part relates to an overt act whereas the
second one would come within the sphere of informed
consent and authorised omission. The omission of such a
nature will not invite any criminal liability if such action is
guided by certain safeguards. The concept is based on
non-prolongation of life where there is no cure for the state
the patient is in and he, under no circumstances, would
have liked to have such a degrading state. The words “no
cure” have to be understood to convey that the patient
remains in the same state of pain and suffering or the dying
process is delayed by means of taking recourse to modern
medical technology. It is a state where the treating
physicians and the family members know fully well that the
treatment is administered only to procrastinate the
continuum of breath of the individual and the patient is not
even aware that he is breathing. Life is measured by
artificial heartbeats and the patient has to go through this
undignified state which is imposed on him. The dignity of
life is denied to him as there is no other choice but to suffer
an avoidable protracted treatment thereby thus indubitably
casting a cloud and creating a dent in his right to live with
dignity and face death with dignity, which is a preserved
concept of bodily autonomy and right to privacy. In such a
stage, he has no old memories or any future hopes but he
is in a state of misery which nobody ever desires to have.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 185 of 567

Some may also silently think that death, the inevitable
factum of life, cannot be invited. To meet such situations,
the Court has a duty to interpret
Article 21
in a further
dynamic manner and it has to be stated without any trace
of doubt that the right to life with dignity has to include the
smoothening of the process of dying when the person is in
a vegetative state or is living exclusively by the
administration of artificial aid that prolongs the life by
arresting the dignified and inevitable process of dying.
Here, the issue of choice also comes in. Thus analysed, we
are disposed to think that such a right would come within
the ambit of
Article 21
of the Constitution.”

102) In the other opinion40, four facets of euthanasia were discussed,

namely: (i) philosophy of euthanasia, (ii) morality of euthanasia,

(iii) dignity in euthanasia, and (iv) economics of euthanasia.

While discussing dignity in euthanasia, the three models of

dignity, namely, theological, philosophical and constitutional

model, were highlighted. Thereafter, postulates of dignity have

been explained in the following manner:

“292. Aharon Barak, former Chief Justice of the Supreme
Court of Israel, attributes two roles to the concept of human
dignity as a constitutional value, which are:

292.1. Human dignity lays a foundation for all the human
rights as it is the central argument for the existence of
human rights.

292.2. Human dignity as a constitutional value provides
meaning to the norms of the legal system. In the process,
one can discern that the principle of purposive
interpretation exhorts us to interpret all the rights given by
the Constitution, in the light of the human dignity. In this
sense, human dignity influences the purposive
interpretation of the Constitution. Not only this, it also
influences the interpretation of every sub-constitutional
norm in the legal system. Moreover, human dignity as a
40 Rendered by A.K. Sikri, J.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 186 of 567

constitutional value also influences the development of the
common law.

xx xx xx

295. Dworkin, being a philosopher-jurist, was aware of the
idea of a Constitution and of a constitutional right to human
dignity. In his book, Taking Rights Seriously, he noted that
everyone who takes rights seriously must give an answer
to the question why human rights vis-à-vis the State exist.
According to him, in order to give such an answer one must
accept, as a minimum, the idea of human dignity. As he
writes:

“Human dignity … associated with Kant, but defended
by philosophers of different schools, supposes that
there are ways of treating a man that are inconsistent
with recognising him as a full member of the human
community, and holds that such treatment is
profoundly unjust.”41

296. In his Book, Is Democracy Possible Here?42 Dworkin
develops two principles about the concept of human
dignity. First principle regards the intrinsic value of every
person viz. every person has a special objective value
which value is not only important to that person alone but
success or failure of the lives of every person is important
to all of us. The second principle, according to Dworkin, is
that of personal responsibility. According to this principle,
every person has the responsibility for success in his own
life and, therefore, he must use his discretion regarding the
way of life that will be successful from his point of view.
Thus, Dworkin's jurisprudence of human dignity is founded
on the aforesaid two principles which, together, not only
define the basis but the conditions for human dignity.
Dworkin went on to develop and expand these principles in
his book, Justice for Hedgehogs (2011)43.

297. When speaking of rights, it is impossible to envisage
it without dignity. In his pioneering and all-inclusive Justice
for Hedgehogs, he proffered an approach where respect
for human dignity, entails two requirements; first, self-
respect i.e. taking the objective importance of one's own

41 Ronald Dworkin, Taking Rights Seriously (A&C Black, 2013) 239.
42 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton
University Press, 2006)
43 Harvard University Press, 2011.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 187 of 567

life seriously; this represents the free will of the person, his
capacity to think for himself and to control his own life and
second, authenticity i.e. accepting a “special, personal
responsibility for identifying what counts as success” in
one's own life and for creating that life “through a coherent
narrative” that one has chosen44. According to Dworkin,
these principles form the fundamental criteria supervising
what we should do in order to live well.45 They further
explicate the rights that individuals have against their
political community,46 and they provide a rationale for the
moral duties we owe to others. This notion of dignity, which
Dworkin gives utmost importance to, is indispensable to
any civilised society. It is what is constitutionally recognised
in our country and for good reason. Living well is a moral
responsibility of individuals; it is a continuing process that is
not a static condition of character but a mode that an
individual constantly endeavours to imbibe. A life lived
without dignity, is not a life lived at all for living well implies
a conception of human dignity which Dworkin interprets
includes ideals of self-respect and authenticity.”

103) In summation, it can be said that the concept of human dignity

dates back to thousands of years. Historically, human dignity, as

a concept, found its origin in different religions which is held to be

an important component of their theological approach. Jurists

have given this approach as ‘theological model’ of dignity. It is

primarily based on the premise that human beings are the

creation of God and cannot be treated as mere material beings.

Human identity is more ethical than spiritual because man is

creation of God; harm to a human being is harm to God. God,

thus, wishes to grant human being recognition, dignity and

44 Kenneth W. Simons, “Dworkin's Two Principle of Dignity: An Unsatisfactory Non-
Consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715 (2010)]
45 Footnote 33 above.

46 Footnote 32 above.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 188 of 567

authority. It is also religious belief that God is rational and

determines his goals for himself. Likewise, human being created

by God too is rational and determines his own goal. Therefore,

man has freedom of will. A couple of centuries ago, philosophical

approach was given to the conception of human dignity. This

sphere was headed by German Philosopher Immanuel Kant

whose moral theory is divided into two parts: ethics and right.

According to Kant, a person acts ethically when he acts by force

of a duty that a rational agent self-legislates onto his own will.

Thus, he talked of free will of the human being. For Kant, ethics

include duties of oneself (for example - to develop one's talents)

and to others (for example - to contribute to their happiness).

This ability is the human dignity of man. Philosophical approach,

thus, is metaethical one, which is a journey from ‘human being’

and ‘remaining human’. This is explained by Professor Upendra

Baxi as the relationship between ‘self’, ‘others’ and ‘society’. In

this philosophical sense, dignity is ‘respect’ for an individual

person based on the principle of freedom and capacity of making

choices and a good or just social order is one which respects

dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of

free and informed choice’. To put it philosophically, each

individual has a right to live her life the way she wants, without

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 189 of 567

any subjugation. One can rule others, but then it is never noble.

It is immoral because the other is not a means to you, the other is

an end to herself. Kant also maintains that to use the other as a

means is the basic immoral act. Everything else that is immoral

is immoral because of this, so this should be the criterion: Are

you using the other as a means? Someone has put this

remarkably in the following words:

“Alexander the Great is not noble, only Gautam the Buddha
is noble, for the simple reason that Buddha has no rule
over others but he is a matter of himself.

There is no part of his being which is not in tune with him.
He has come to attain absolute harmony. There is no
conflict in him, there is a reign of absolute peace. And his
consciousness is supreme, nothing is above it – no instinct,
no intellect, nothing is higher than his consciousness.”

104) Historically, a transition has taken place into the idea of dignity by

transforming the amalgam of theological approach (man as

creation of God deserving dignity) and philosophical approach

based on morality, by elevating human dignity as a constitutional

norm attaching constitutional value to it. It is a transition from

‘respect’ to ‘right’ by making respect as enforceable right. The

manner in which it has happened in India has been traced above.

105) From the aforesaid discussion, it follows that dignity as a

jurisprudential concept has now been well defined by this Court.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 190 of 567

Its essential ingredients can be summarised as under:

The basic principle of dignity and freedom of the individual

is an attribute of natural law which becomes the right of all

individuals in a constitutional democracy. Dignity has a central

normative role as well as constitutional value. This normative role

is performed in three ways:

First, it becomes basis for constitutional rights;

Second, it serves as an interpretative principle for

determining the scope of constitutional rights; and,

Third, it determines the proportionality of a statute limiting a

constitutional right. Thus, if an enactment puts limitation on a

constitutional right and such limitation is disproportionate, such a

statute can be held to be unconstitutional by applying the doctrine

of proportionality.

106) As per Dworkin, there are two principles about the concept of

human dignity. First principle regards an ‘intrinsic value’ of every

person, namely, every person has a special objective value,

which value is not only important to that person alone but

success or failure of the lives of every person is important to all of

us. It can also be described as self respect which represents the

free will of the person, her capacity to think for herself and to

control her own life. The second principle is that of ‘personal

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 191 of 567

responsibility’, which means every person has the responsibility

for success in her own life and, therefore, she must use her

discretion regarding the way of life that will be successful from

her point of view.

107) Sum total of this exposition is well defined by Professor Baxi by

explaining that as per the aforesaid view, dignity is to be treated

as ‘empowerment’ which makes a triple demand in the name of

‘respect’ for human dignity, namely:

(i) respect for one's capacity as an agent to make one's own free

choices;

(ii) respect for the choices so made; and

(iii) respect for one's need to have a context and conditions in

which one can operate as a source of free and informed choice.

108) In this entire formulation, ‘respect’ for an individual is the fulcrum,

which is based on the principle of freedom and capacity to make

choices and a good or just social order is one which respects

dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of

free and informed choice’.

109) The aforesaid discourse on the concept of human dignity is from

an individual point of view. That is the emphasis of the petitioners

as well. That would be one side of the coin. A very important

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 192 of 567

feature which the present case has brought into focus is another

dimension of human dignity, namely, in the form of ‘common

good’ or ‘public good’. Thus, our endeavour here is to give richer

and more nuanced understanding to the concept of human

dignity. Here, dignity is not limited to an individual and is to be

seen in an individualistic way. A reflection on this facet of human

dignity was stated in
National Legal Services Authority

(Transgenders’
case), which can be discerned from the following

discussion:

“103. A corollary of this development is that while so long
the negative language of
Article 21
and use of the word
“deprived” was supposed to impose upon the State the
negative duty not to interfere with the life or liberty of an
individual without the sanction of law, the width and
amplitude of this provision has now imposed a positive
obligation (
Vincent Panikurlangara v. Union of India
) upon
the State to take steps for ensuring to the individual a
better enjoyment of his life and dignity e.g.:

(i) Maintenance and improvement of public health (
Vincent
Panikurlangara v. Union of India
).

(ii) Elimination of water and air pollution (M.C. Mehta v.

Union of India).

(iii) Improvement of means of communication (
State of H.P.
v. Umed Ram Sharma
).

(iv) Rehabilitation of bonded labourers (
Bandhua Mukti
Morcha v. Union of India
).

(v) Providing human conditions in prisons (
Sher Singh v.
State of Punjab
) and protective homes (
Sheela Barse v.
Union of India
).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 193 of 567

(vi) Providing hygienic condition in a slaughterhouse
(
Buffalo Traders Welfare Assn. v. Maneka Gandhi
).

104. The common golden thread which passes through all
these pronouncements is that
Article 21
guarantees
enjoyment of life by all citizens of this country with dignity,
viewing this human right in terms of human development.

105. The concepts of justice social, economic and political,
equality of status and of opportunity and of assuring dignity
of the individual incorporated in the Preamble, clearly
recognise the right of one and all amongst the citizens of
these basic essentials designed to flower the citizen's
personality to its fullest. The concept of equality helps the
citizens in reaching their highest potential. Thus, the
emphasis is on the development of an individual in all
respects.”

110) Christopher McCrudden, an Oxford Academic, in his article

‘Human Dignity and Judicial Interpretation of Human Rights’ 47

published in the European Journal of International Law on

September 01, 2008 traces the evolution of concept of human

dignity. In substance, his analysis is that in the early stages of

social evolution, human dignity was understood as a concept

associated with ‘status’. Only those individuals were considered

worthy of respect who enjoyed a certain status within the social

construct. Though one finds statements about dignity of humans

as human beings on account of the human being the highest

creation of God and his possession of mind and the power of

reason in the Oration of Marcus Tullius Cicero, a Roman

Politician and Philosopher (63 BC), and in the works of Pico della
47 Published in the European Journal of International Law on September 01, 2008

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Mirandola, a Reformation Humanist (1486) ‘On the dignity of

man’, yet there existed human beings who were not considered

as human beings. There were slaves who were treated at par

with animals.

111) Kant expounded the theory that humans should be treated as an

end in themselves and not merely as a means to an end with

ability to choose their destiny. Emphasis was laid on the intrinsic

worth of the human being. Based on this philosophy emerged

the initial declaration of rights. Kant wrote thus:

“Humanity itself is a dignity; for a human being cannot be
used merely as a means by any human being (...) but must
always be used at the same time as an end. It is just in this
that his dignity (personality) consists, by which he raises
himself above all other beings in the world that are not
human beings and yet can be used, and so overall things.”

112) Charles Bernard Renouvier, a French Philosopher, said:

“Republic is a State which best reconciles dignity of
individual with dignity of everyone.”

113) Dignity extended to all citizens involves the idea of

communitarism. A little earlier in 1798, Friedrich Schiller, a

German poet of freedom and philosophy, brought out the

connection between dignity and social condition in his work

“Wurde des Menschen”. He said “(g)ive him food and shelter;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 195 of 567

when you have covered his nakedness, dignity will follow by

itself.” It was during the period that abolition of slavery became

an important political agenda. Slavery was considered as an

affront to human dignity.

114) The Universal Declaration of Human Rights (UDHR) recorded in

the Preamble recognition of the inherent dignity and of the equal

and inalienable rights of all members of the human family as the

foundation of freedom, justice and peace. It included freedom

from fear and want as amongst the highest aspirations of the

common people. This is of course subject to resources of each

State. But the realisation is contemplated through national effort

and international cooperation. Evidently, the UDHR adopts a

substantive or communitarian concept of human dignity. The

realisation of intrinsic worth of every human being, as a member

of society through national efforts as an indispensable condition

has been recognised as an important human right. Truly

speaking, this is directed towards the deprived, downtrodden and

have nots.

115) We, therefore, have to keep in mind humanistic concept of

human dignity which is to be accorded to a particular segment of

the society and, in fact, a large segment. Their human dignity is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 196 of 567

based on the socio-economic rights that are read in to the

fundamental rights, as already discussed above.

116) When we read socio-economic rights into human dignity, the

community approach also assumes importance along with

individualistic approach to human dignity. It has now been well

recognised that at its core, human dignity contains three

elements, namely, intrinsic value, autonomy and community

value. These are known as core values of human dignity. These

three elements can assist in structuring legal reasoning and

justifying judicial choices in ‘hard cases’. It has to be borne in

mind that human dignity is a constitutional principle, rather than

free standing fundamental rights. Insofar as intrinsic value is

concerned, here human dignity is linked to the nature of being.

We may give brief description of these three contents of the idea

of human dignity as below:

(I) Intrinsic Value:

The uniqueness of human kind is the product of a

combination of inherent traits and features – including

intelligence, sensibility, and the ability to communicate – that give

humans a special status in the world, distinct from other

species.48 The intrinsic value of all individuals results in two
48 See George Kateb, Human Dignity 5 (2011) (“[W]e can distinguish between the dignity of every

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 197 of 567

basic postulates: anti-utilitarian and anti-authoritarian. The former

consists of the formulation of Kant’s categorical imperative that

every individual is an end in him or herself, not a means for

collective goals or the purposes of others. The latter is

synthesized in the idea that the State exists for the individual, not

the other way around. As for its legal implications, intrinsic value

is the origin of a set of fundamental rights. The first of these

rights is the right to life, a basic precondition for the enjoyment of

any other right. A second right directly related to the intrinsic

value of each and every individual is equality before and under

the law. All individuals are of equal value and, therefore, deserve

equal respect and concern. This means not being discriminated

against due to race, colour, ethnic or national origin, sex, age or

mental capacity (the right to non-discrimination), as well as

respect for cultural, religious, or linguistic diversity (the right to

recognition). Human dignity fulfills only part of the content of the

idea of equality, and in many situations it may be acceptable to

differentiate among people. In the contemporary world, this is

particularly at issue in cases involving affirmative action and the

rights of religious minorities. Intrinsic value also leads to the right

to integrity, both physical and mental. The right to physical

human individual and the dignity of the human species as a whole.”).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 198 of 567

integrity includes the prohibition of torture, slave labour, and

degrading treatment or punishment. Discussions on life

imprisonment, interrogation techniques, and prison conditions

take place within the scope of this right. The right to mental

integrity comprises the right to personal honour and image and

includes the right to privacy.

(II) Autonomy:

Autonomy is the ethical element of human dignity. It is the

foundation of the free will of individuals, which entitles them to

pursue the ideals of living well and having a good life in their own

ways. The central notion is that of self-determination: An

autonomous person establishes the rules that will govern his or

her life. Kantian conception of autonomy is the will governed by

the moral law (moral autonomy). Here, we are concerned with

personal autonomy, which is value neutral and means the free

exercise of the will according to one’s own values, interests, and

desires. Autonomy requires the fulfillment of certain conditions,

such as reason (the mental capacity to make informed decisions),

independence (the absence of coercion, manipulation and severe

want), and choice (the actual existence of alternatives).

Autonomy, thus, is the ability to make personal decisions and

choices in life based on one’s conception of the good, without

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 199 of 567

undue external influences. As for its legal implications, autonomy

underlies a set of fundamental rights associated with democratic

constitutionalism, including basic freedoms (private autonomy)

and the right of political participation (public autonomy).

It would be pertinent to emphasise here that with the rise of

the welfare state, many countries in the world (and that includes

India) also consider a fundamental right to minimum living

conditions (the existential minimum) in the balancing that results

into effective autonomy. Thus, there are three facets of

autonomy, namely: private autonomy, public autonomy and the

existential minimum. Insofar as the last component is concerned,

it is also referred to as social minimum or the basic right to the

provision of adequate living conditions has its roots in right to

equality as well. In fact, equality, in a substantive sense, and

especially autonomy (both private and public), are dependent on

the fact that individuals are “free from want,” meaning that their

essential needs are satisfied. To be free, equal, and capable of

exercising responsible citizenship, individuals must pass

minimum thresholds of well-being, without which autonomy is a

mere fiction. This requires access to some essential utilities,

such as basic education and health care services, as well as

some elementary necessities, such as food, water, clothing, and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 200 of 567

shelter. The existential minimum, therefore, is the core content of

social and economic rights. This concept of minimum social right

is protected by the Court, time and again.

(III) Community Value:

This element of human dignity as community value relates

to the social dimension of dignity. The contours of human dignity

are shaped by the relationship of the individual with others, as

well as with the world around him. English poet John Donne

expresses the same sentiments when he says ‘no man is an

island, entire of itself’ 49. The individual, thus, lives within himself,

within a community, and within a state. His personal autonomy is

constrained by the values, rights, and morals of people who are

just as free and equal as him, as well as by coercive regulation.

Robert Post identified three distinct forms of social order:

community (a “shared world of common faith and fate”),

management (the instrumental organization of social life through

law to achieve specific objectives), and democracy (an

arrangement that embodies the purpose of individual and

collective self-determination. These three forms of social order

presuppose and depend on each other, but are also in constant

tension.

49 See John Donne, XVII. Mediation, in Devotions upon Emergent Occasions 107, 108-09 (Uyniv.
Of Mich. Press 1959) (1624)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 201 of 567

Dignity as a community value, therefore, emphasises the

role of the state and community in establishing collective goals

and restrictions on individual freedoms and rights on behalf of a

certain idea of the good life. The relevant question here is in

what circumstances and to what degree should these actions be

regarded as legitimate in a constitutional democracy? The liberal

predicament that the state must be neutral with regard to different

conceptions of the good in a plural society is not incompatible, of

course, with limitation resulting from the necessary coexistence of

different views and potentially conflicting rights. Such

interferences, however, must be justified on grounds of a

legitimate idea of justice, an “overlapping consensus” 50 that can

be shared by most individuals and groups. Whenever such

tension arises, the task of balancing is to be achieved by the

Courts.

We would like to highlight one more significant feature

which the issues involved in the present case bring about. It is

the balancing of two facets of dignity of the same individual.

Whereas, on the one hand, right of personal autonomy is a part

of dignity (and right to privacy), another part of dignity of the

same individual is to lead a dignified life as well (which is again a
50 “Overlapping consensus” is a term coined by John Rawls that identifies basic ideas of justice
that can be shared by supporters of different religious, political, and moral comprehensive
doctrines.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 202 of 567

facet of
Article 21
of the Constitution). Therefore, in a scenario

where the State is coming out with welfare schemes, which strive

at giving dignified life in harmony with human dignity and in the

process some aspect of autonomy is sacrificed, the balancing of

the two becomes an important task which is to be achieved by

the Courts. For, there cannot be undue intrusion into the

autonomy on the pretext of conferment of economic benefits.

Precisely, this very exercise of balancing is undertaken by the

Court in resolving the complex issues raised in the petitions.

Doctrine of Proportionality:

117) As noted above, whenever challenge is laid to an action of the

State on the ground that it violates the right to privacy, the action

of the State is to be tested on the following parameters:

(a) the action must be sanctioned by law;

(b) the proposed action must be necessary in a democratic

society for a legitimate aim; and

(c) the extent of such interference must be proportionate to the

need for such interference.

118) Doctrine of proportionality was explained by the Constitution

Bench judgment of this Court in
Modern Dental College and

Research Centre & Ors. v. State of Madhya Pradesh & Ors.
51.
In

51 (2016) 7 SCC 353

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 203 of 567

the first instance, therefore, it would be apt to reproduce the said

discussion:

“60. ...Thus, while examining as to whether the impugned
provisions of the statute and rules amount to reasonable
restrictions and are brought out in the interest of the
general public, the exercise that is required to be
undertaken is the balancing of fundamental right to carry
on occupation on the one hand and the restrictions
imposed on the other hand. This is what is known as
“doctrine of proportionality”. Jurisprudentially,
“proportionality” can be defined as the set of rules
determining the necessary and sufficient conditions for
limitation of a constitutionally protected right by a law to be
constitutionally permissible. According to Aharon Barak
(former Chief Justice, Supreme Court of Israel), there are
four sub-components of proportionality which need to be
satisfied [Aharon Barak, Proportionality: Constitutional
Rights and Their Limitation (Cambridge University Press
2012)], a limitation of a constitutional right will be
constitutionally permissible if:

(i) it is designated for a proper purpose;

(ii) the measures undertaken to effectuate such a

limitation are rationally connected to the fulfilment of that
purpose;

(iii) the measures undertaken are necessary in that there
are no alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation; and finally

(iv) there needs to be a proper relation (“proportionality
stricto sensu” or “balancing”) between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.

61. Modern theory of constitutional rights draws a
fundamental distinction between the scope of the
constitutional rights, and the extent of its protection. Insofar
as the scope of constitutional rights is concerned, it marks
the outer boundaries of the said rights and defines its
contents. The extent of its protection prescribes the
limitations on the exercises of the rights within its scope. In

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 204 of 567

that sense, it defines the justification for limitations that can
be imposed on such a right.

62. It is now almost accepted that there are no absolute
constitutional rights [ Though, debate on this vexed issue
still continues and some constitutional experts claim that
there are certain rights, albeit very few, which can still be
treated as “absolute”. Examples given are:(a) Right to
human dignity which is inviolable,(b) Right not to be
subjected to torture or to inhuman or degrading treatment
or punishment. Even in respect of such rights, there is a
thinking that in larger public interest, the extent of their
protection can be diminished. However, so far such
attempts of the States have been thwarted by the judiciary.]
and all such rights are related. As per the analysis of
Aharon Barak [Aharon Barak, Proportionality:

Constitutional Rights and Their Limitation (Cambridge
University Press 2012).] , two key elements in developing
the modern constitutional theory of recognising positive
constitutional rights along with its limitations are the notions
of democracy and the rule of law. Thus, the requirement of
proportional limitations of constitutional rights by a sub-
constitutional law i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as
the Indian Constitution is concerned, democracy is treated
as the basic feature of the Constitution and is specifically
accorded a constitutional status that is recognised in the
Preamble of the Constitution itself. It is also unerringly
accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy. Once
we accept the aforesaid theory (and there cannot be any
denial thereof), as a fortiori, it has also to be accepted that
democracy is based on a balance between constitutional
rights and the public interests. In fact, such a provision in

Article 19
itself on the one hand guarantees some certain
freedoms in clause (1) of
Article 19
and at the same time
empowers the State to impose reasonable restrictions on
those freedoms in public interest. This notion accepts the
modern constitutional theory that the constitutional rights
are related. This relativity means that a constitutional
licence to limit those rights is granted where such a
limitation will be justified to protect public interest or the
rights of others. This phenomenon—of both the right and
its limitation in the Constitution—exemplifies the inherent
tension between democracy's two fundamental elements.
On the one hand is the right's element, which constitutes a
fundamental component of substantive democracy; on the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 205 of 567

other hand is the people element, limiting those very rights
through their representatives. These two constitute a
fundamental component of the notion of democracy,
though this time in its formal aspect. How can this tension
be resolved? The answer is that this tension is not resolved
by eliminating the “losing” facet from the Constitution.
Rather, the tension is resolved by way of a proper
balancing of the competing principles. This is one of the
expressions of the multi-faceted nature of democracy.
Indeed, the inherent tension between democracy's different
facets is a “constructive tension”. It enables each facet to
develop while harmoniously coexisting with the others. The
best way to achieve this peaceful coexistence is through
balancing between the competing interests. Such
balancing enables each facet to develop alongside the
other facets, not in their place. This tension between the
two fundamental aspects—rights on the one hand and its
limitation on the other hand—is to be resolved by balancing
the two so that they harmoniously coexist with each other.
This balancing is to be done keeping in mind the relative
social values of each competitive aspects when considered
in proper context.

63. In this direction, the next question that arises is as to
what criteria is to be adopted for a proper balance between
the two facets viz. the rights and limitations imposed upon
it by a statute. Here comes the concept of “proportionality”,
which is a proper criterion. To put it pithily, when a law
limits a constitutional right, such a limitation is constitutional
if it is proportional. The law imposing restrictions will be
treated as proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a
purpose are rationally connected to the purpose, and such
measures are necessary. This essence of doctrine of
proportionality is beautifully captured by Dickson, C.J. of
Canada in R. v. Oakes [R. v. Oakes, (1986) 1 SCR 103
(Can SC)] , in the following words (at p. 138):

‘To establish that a limit is reasonable and
demonstrably justified in a free and democratic
society, two central criteria must be satisfied. First,
the objective, which the measures, responsible for a
limit on a Charter right or freedom are designed to
serve, must be “of” sufficient importance to warrant
overriding a constitutional protected right or freedom
… Second … the party invoking
Section 1
must show
that the means chosen are reasonable and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 206 of 567

demonstrably justified. This involves “a form of
proportionality test…” Although the nature of the
proportionality test will vary depending on the
circumstances, in each case courts will be required to
balance the interests of society with those of
individuals and groups. There are, in my view, three
important components of a proportionality test. First,
the measures adopted must be … rationally
connected to the objective. Second, the means …
should impair “as little as possible” the right or
freedom in question … Third, there must be a
proportionality between the effects of the measures
which are responsible for limiting the Charter right or
freedom, and the objective which has been identified
as of “sufficient importance”. The more severe the
deleterious effects of a measure, the more important
the objective must be if the measure is to be
reasonable and demonstrably justified in a free and
democratic society.’

64. The exercise which, therefore, is to be taken is to find
out as to whether the limitation of constitutional rights is for
a purpose that is reasonable and necessary in a
democratic society and such an exercise involves the
weighing up of competitive values, and ultimately an
assessment based on proportionality i.e. balancing of
different interests.

65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined
in
Article 19
itself when we read clause (1) along with
clause (6) thereof. While defining as to what constitutes a
reasonable restriction, this Court in a plethora of judgments
has held that the expression “reasonable restriction” seeks
to strike a balance between the freedom guaranteed by
any of the sub-clauses of clause (1) of
Article 19
and the
social control permitted by any of the clauses (2) to (6). It is
held that the expression “reasonable” connotes that the
limitation imposed on a person in the enjoyment of the right
should not be arbitrary or of an excessive nature beyond
what is required in the interests of public. Further, in order
to be reasonable, the restriction must have a reasonable
relation to the object which the legislation seeks to achieve,
and must not go in excess of that object (see
P.P.
Enterprises v. Union of India
).

At the same time,
reasonableness of a restriction has to be determined in an
objective manner and from the standpoint of the interests

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 207 of 567

of the general public and not from the point of view of the
persons upon whom the restrictions are imposed or upon
abstract considerations (see
Mohd. Hanif Quareshi v. State
of Bihar
).

In
M.R.F. Ltd. v. State of Kerala
, this Court held
that in examining the reasonableness of a statutory
provision one has to keep in mind the following factors:

(1) The directive principles of State policy.

(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest of
the general public.

(3) In order to judge the reasonableness of the restrictions,
no abstract or general pattern or a fixed principle can be
laid down so as to be of universal application and the same
will vary from case to case as also with regard to changing
conditions, values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances.

(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by
Article 19(6).

(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.

(6) There must be a direct and proximate nexus or
reasonable connection between the restrictions imposed
and the object sought to be achieved. If there is a direct
nexus between the restrictions, and the object of the Act,
then a strong presumption in favour of the constitutionality
of the Act will naturally arise.”
(emphasis in original)

119) We may note at this stage that there is a growing awareness of

the practical importance of the principle of proportionality for

rights adjudication and it has sparked a wave of academic

scholarship as well. The first integrates the doctrine of

proportionality into a broader theoretical framework. It is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 208 of 567

propounded by Robert Alexy, premised on the theory of rights as

principles and optimisation requirements52. For Alexy, all norms

are either rules or principles. Constitutional rights are principles,

which means that they must be realised to the greatest extent

factually and legally possible. For Alexy, the principle of

proportionality follows logically from the nature of constitutional

rights as principles. On the other hand, Mattias Kumm presented

his theory of rights adjudication as Socratic contestation, with

proportionality principle at its centre. As per Kumm,

proportionality is the doctrinal tool which allows Judges to assess

the reasonableness or plausibility, of a policy and thus to

determine whether it survives Socratic contestation 53. Recently,

Kai Moller has proposed another theory, which is an autonomy-

based theory of what he calls ‘the global model of constitutional

rights’, at the core of which lies the obligation of the State to take

the autonomy interests of every person adequately into account 54.

In this process, his understanding of autonomy leads to one

consequence, viz., there will often be conflicts of autonomy

interests, which have to be resolved in line with each agent’s

52 Robert Alexy, A Theory of Constitutional Rights, (Oxford, Oxford University Press, 2002)
53 M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point and
Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 141; M
Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm,
Legitimate Authority and the point of Judicial Review’ (2007) 1 European Journal of Legal
Studies.

54 K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 209 of 567

status as an equal. Here, the proportionality principle becomes

the doctrinal tool which guides Judges through the process of

resolving those conflicts.

One thing is clear from the above, i.e. jurisprudential

explanations of proportionality principle. There may be some

differences about the approach on the application of

proportionality doctrine, it is certain that proportionality has

become the lingua franca of judicial systems across borders,

concerning the circumstances under which it is appropriate to

limit fundamental rights.

120) The proportionality test which is stated in the aforesaid judgment,

accepting Justice Barak’s conceptualisation, essentially takes the

version which is used by the German Federal Constitutional

Court and is also accepted by most theorists of proportionality.

According to this test, a measure restricting a right must, first,

serve a legitimate goal (legitimate goal stage); it must, secondly,

be a suitable means of furthering this goal (suitability or rational

connection stage); thirdly, there must not be any less restrictive

but equally effective alternative (necessity stage); and fourthly,

the measure must not have a disproportionate impact on the

right-holder (balancing stage).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 210 of 567

121) Many issues arise while undertaking the exercise of

proportionality inquiry. At legitimate goal stage, question arises

as to what does it mean to speak of the goal of a policy, and what

does it mean to require a goal to be legitimate? 55 With regard to

the suitability and necessity stages, some of the open issues are

how to deal with empirical uncertainty: should this lead to wide-

ranging deference to the elected branches? 56 At the balancing

stage, we have to ask the question of what it means to say that a

right is ‘balanced’ against a competing right or public interest.

One remarkable feature of the German test is that it tends to

push most of the important issues into the last stage, viz., the

balancing stage. At the legitimate goal stage, any goal that is

legitimate will be accepted. At the suitability stage, even a

marginal contribution to the achievement of the goal will suffice.

At the necessity stage, it is very rare for a policy to fail because

less restrictive alternatives normally come with some

disadvantage and cannot, therefore, be considered equally

effective. Thus, the balancing stage dominates the legal analysis

and is usually determinative of the outcome.

55 On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the Structure of
Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos (ed), Law,
Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford, Hart Publishing, 2007)
131; Moller, the Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012) ch

7.
56 As a proposal of how to deal with uncertainty, see Alexy’s ‘Second Law of Balancing’, which he
proposes in the Postscript to A Theory of Constitutional Rights (Oxford, Oxford University Press,
2002).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 211 of 567

122) In contrast, Canadian Supreme Court has chartered different

course while using proportionality test. R. v. Oakes57 (popularly

known as Oakes test), has held that the objective must be ‘of

sufficient importance to warrant overriding a constitutionally

protected right or freedom’; there must be a rational connection

between measure and objective; the means must ‘impair “as little

as possible” the right or freedom in question’; and finally, ‘there

must be a proportionality between the effects of the measures

which are responsible for limiting the Charter right or freedom,

and the objective which has been identified as of “sufficient

importance”’. Under this test, arguably more issues are

addressed at the earlier stages. Instead of accepting any

legitimate goal, Oakes requires a goal ‘of sufficient importance to

warrant overriding a constitutionally protected right or freedom’.

And the minimal impairment test is different from the German

necessity test both in the way in which it is formulated (there is no

requirement that the less restrictive measure be equally effective)

and in the way it is applied in practice: the Canadian Supreme

Court tends to resolve cases at that stage and not, as the

German Federal Constitutional Court, at the balancing stage.

123) There is a great debate as to which out of the aforesaid two
57 (1986) 1 SCR 103

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 212 of 567

approaches is a better approach. Some jurists are of the view

that the proper application of the German test leads to a practice

of constitutional review with two connected problems: first, as

pointed about above, usually almost all the moral work is done at

the balancing stage, arguably rendering the earlier stages largely

useless and throwing doubt on the truth of the popular argument

that proportionality is a valuable doctrine partly because it

structures the analysis of rights issues in a meaningful way.

Secondly, the balancing act at the final stage is often carried out

in an impressionistic fashion which seems to be largely unguided

by principle and thus opens the door for subjective, arbitrary and

unpredictable judgments encroaching on what ought to be the

proper domain of the democratic legislature. These concerns

can, however, be addressed. According to Bilchitz 58, first concern

can be addressed by focusing on the necessity stage of the test.

He takes issue with both the German test – according to which

almost all policies are necessary because any alternative policy

will usually have some disadvantage which means that it cannot

be considered equally effective – and the Canadian minimal

impairment test – which, taken seriously, narrows down the range

of constitutionally acceptable policies far too much: ‘minimal

58 ‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing, Oxford and
Portland, Oregon, 2016.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 213 of 567

impairment’ can be read as insisting that only one measure could

pass constitutional scrutiny, namely the measure which impairs

the right least.59 So the alternatives seem to be either to

construct the necessity (minimal impairment) test as filtering out

almost nothing or to allow only one policy, thus rendering the

elected branches partly superfluous. In order to preserve a

meaningful but not unduly strict role for the necessity stage,

Bilchitz proposes the following inquiry. First, a range of possible

alternatives to the measure employed by the Government must

be identified. Secondly, the effectiveness of these measures

must be determined individually; the test here is not whether each

respective measure realises the governmental objective to the

same extent, but rather whether it realises it in a ‘real and

substantial manner’. Thirdly, the impact of the respective

measures on the right at stake must be determined. Finally, an

overall judgment must be made as to whether in light of the

findings of the previous steps, there exists an alternative which is

preferable; and this judgment will go beyond the strict means-

ends assessment favoured by Grimm and the German version of

the proportionality test; it will also require a form of balancing to

59 On the various problems which the Canadian Supreme Court created for itself because of its
early unfortunate statements on proportionality see S Choudhry, ‘So What Is the Real Legacy of
Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s
Section 1
’ (2006)
34 Supreme Court Law Review 501.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 214 of 567

be carried out at the necessity stage.

124) Insofar as second problem in German test is concerned, it can be

taken care of by avoiding ‘ad-hoc balancing’ and instead

proceeding on some ‘bright-line rules’ i.e. by doing the act of

balancing on the basis of some established rule or by creating a

sound rule. We may point out that whereas Chandrachud, J. has

formulated the test of ‘legitimate state interest’, other two of the

Judges, namely, Chelameswar and Sapre, JJ. have used the test

of ‘compelling state interest’ and not ‘legitimate state interest’.

On the other hand, S.K. Kaul, J. has held that the test to be

applied is whether the law satisfies ‘public interest’. Nariman, J.,

on the other hand, pointed out that the
Right to Information Act,
has provided for personal information being disclosed to

third parties subject to ‘larger public interest’ being satisfied. If

this test is applied, the result is that one would be entitled to

invoke ‘large public interest’ in lieu of ‘legitimate state aim’ or

‘legitimate state interest’, as a permissible restriction on a claim to

privacy of an individual – a more lenient test. However, since

judgment of Chandrachud, J. is on behalf of himself and three

other Judges and S.K. Kaul, J. has also virtually adopted the

same test, we can safely adopt the test of ‘legitimate state

interest’ as the majority opinion, instead of applying the test of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 215 of 567

‘compelling state interest’.

125) In Modern Dental College & Research Centre, four sub

components or proportionality which need to be satisfied were

taken note of. These are:

(a) A measure restricting a right must have a legitimate goal

(legitimate goal stage).

(b) It must be a suitable means of furthering this goal (suitability

or rationale connection stage).

(c) There must not be any less restrictive but equally effective

alternative (necessity stage).

(d) The measure must not have a disproportionate impact on

the right holder (balancing stage).

126) This has been approved in K.S. Puttaswamy as well. Therefore,

the aforesaid stages of proportionality can be looked into and

discussed. Of course, while undertaking this exercise it has also

to be seen that the legitimate goal must be of sufficient

importance to warrant overriding a constitutionally protected right

or freedom and also that such a right impairs freedom as little as

possible. This Court, in its earlier judgments, applied German

approach while applying proportionality test to the case at hand.

We would like to proceed on that very basis which, however, is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 216 of 567

tempered with more nuanced approach as suggested by Bilchitz.

This, in fact, is the amalgam of German and Canadian approach.

We feel that the stages, as mentioned in Modern Dental College

& Research Centre and recapitulated above, would be the safe

method in undertaking this exercise, with focus on the

parameters as suggested by Bilchitz, as this projects an ideal

approach that need to be adopted.

Issues:

127) After setting the tone of the case, it is now time to specify the

precise issues which are involved that need to be decided in

these matters:

(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 minimisation,
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?

{This issue is considered in the context of Sections 7 and 8
of the Aadhaar Act. Incidental issue of ‘Exclusion’ is also
considered here}

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

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 217 of 567

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

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

(ii)
Section 2(h)
read with
Section 10
of CIDR

(iii)
Section 2(l)
read with
Regulation 23

(iv) Section 2(v)

(v)
Section 3

(vi)
Section 5

(vii)
Section 6

(viii)
Section 8

(ix)
Section 9

(x)
Sections 11
to
(xi)
Sections 23
and
(xii)
Section 23(2)(g)
read with Chapter VI & VII –
Regulations 27 to 32

(xiii)
Section 29

(xiv)
Section 33

(xv)
Section 47
(xvi)

Section 48
(xvii)

Section 57
(xviii)
Section 59

(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 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 thereunder, 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?

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 218 of 567

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

128) We now proceed to discuss the arguments on these grounds, as

advanced by the petitioners, reply thereto and our conclusions

thereupon.

Surveillance:

Whether the Aadhaar Project creates or has tendency to create
surveillance state and is, thus, unconstitutional on this ground?

Education took us from thumb impression to signature
Technology has taken us from signature to thumb impression, again

129) It may be remarked at the outset that the argument of

surveillance draws sustenance, to a larger extent, from privacy

rights as well. Therefore, the arguments which were addressed

under this caption have traces of privacy also. However, these

are discussed in the context of surveillance state argument.

130) It was submitted that Aadhaar project creates the architecture of

a ‘cradle to grave’ surveillance state and society. This means that

it enables the State to profile citizens, track their movements,

assess their habits and silently influence their behaviour

throughout their lives. Over time, the profiling enables the State to

stifle dissent and influence political decision making. The

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 219 of 567

architecture of the project comprises a Central Identities Data

Repository which stores and maintains authentication transaction

data. The authentication record comprises the time of

authentication and the identity of the requesting entity. The UIDAI

and the Authentication Service Agency (ASA) is permitted to store

this authentication record for 2 + 5 years (as per Regulations 20

and 26/27 of the Authentication Regulations). Based on this

architecture it is possible for the State to track down the location

of the person seeking authentication. Since the requesting entity

is also identified, the activity that the citizen is engaging in is also

known. (
Sections 2(d)
,
2(h)
,
,
,
of the Act read with

Regulations 18, 20, 26 of the Aadhaar (Authentication)

Regulation, 2016).

131) According to the petitioners, the Authority has the following

information (according to the document on technical specification

of Aadhaar registered devices published by the Authority in

February 2017) – Aadhaar number, name of Aadhaar holder,

whether authentication failed or was successful, reason for such

failure, requesting entities’ Internet Protocol (IP) address, date

and time of authentication, device ID and its unique ID of

authentication device which can be used to locate the individual.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 220 of 567

132) Authentication of Aadhaar number enables tracking, tagging and

profiling of individuals as the IP Address of the authentication

device gives an idea of its geographical location (determinable

within the range of 2 kilometres), country, city, region, pin

code/zip code). Mr. Divan submits that an individual is on an

electronic leash, tethered to a central data repository that has the

architecture to track all activities of an individual. The Aadhaar

Act creates a database of all Indian residents and citizens with

their core biometric information, demographic information and

meta data. In light of the enormous potential of information,

concentration of information in a single entity, i.e., the Authority,

enabling easier access to aggregated information puts the State

in a position to wield enormous power. Given that with

advancements in technology, such information can affect every

aspect of an individual’s personal, professional, religious and

social life, such power is a threat to individual freedoms

guaranteed under
Articles 19(1)(a)
to 19(1)(g) of the Constitution

and other fundamental rights guaranteed under
Article 21 (Right

to informational privacy)
and
Article 25
of the Constitution. It was

submitted that the Aadhaar Act treats the entire populace of the

country as potential criminals ignoring the necessity to balance

the State’s mandate of protection against crime with the right to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 221 of 567

personal bodily integrity which is envisaged under
Article 21
read

with
Article 20(3)
of the Constitution. It does not require the

collection of data to have a nexus with a crime. Mr. Sibal submits

that in the decision in
Selvi & Ors. v. State of Karnataka60
, this

Court has held:

“The theory of interrelationship of rights mandates that the
right against self-incrimination should also be read as a
component of “personal liberty” under
Article 21.
Hence,
our understanding of the “right to privacy” should account
for its intersection with
Article 20(3)
”

133) It is argued that the Aadhaar Act, therefore, violates the right to

protection from self-incrimination, and the right to privacy and

personal dignity/bodily integrity under
Article 20(3)
and
Article 21.

134) It was argued that the Constitution of India repudiates mass

surveillance as enabled by Aadhaar and the project ought to be

struck down on this ground alone. There is no question of

balancing or justification in case of a surveillance architecture.

135) Passages from various judgments were quoted in an attempt to

establish that surveillance causes interference with right to

privacy, life and liberty.
From Kharak Singh v. State of U.P.
61,

dissenting opinion of Subba Rao, J. (which has been upheld in

K.S. Puttaswamy) was relied upon. With respect to how

60 (2010) 7 SCC 263
61 (1964) 1 SCR 332

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 222 of 567

surveillance constricts right to life and liberty, His Lordship held

that:

“Now let us consider the scope of
Article 21.
The
expression "life" used in that Article cannot be confined
only to the taking away of life, i.e., causing death. In Munn
v. Illinois (1), Field, J., defined "life" in the following words:

“Something more than mere animal existence. The
inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The
provision equally prohibits the mutilation of the body
by the amputation of an arm or leg, or the putting out
of an eye, or the destruction of any other organ of the
body through which the soul communicates with the
outer world. The expression "'liberty" is given a very
wide meaning in America. It takes in all the freedoms.
In Bolling v. Sharpe (2), the Supreme Court of
America observed that the said expression was not
confined to mere freedom from bodily restraint and
that liberty under law extended to the full range of
conduct which the individual was free to pursue. But
this absolute right to liberty was regulated to protect
other social interests by the State exercising its
powers such as police power, the power of eminent
domain, the power of taxation etc. The proper
exercise of the power which is called the due process
of law is controlled by the Supreme Court of America.
In India the word "liberty" has been qualified by the
word "Personal", indicating thereby that it is confined
only to the liberty of the person. The other aspects of
the liberty have been provided for in other Articles of
the Constitution

xx xx xx

It is true our Constitution does not expressly declare a
right to privacy as a fundamental right, but the said
right is an essential ingredient of personal liberty.
Every democratic country sanctifies domestic life; it is
expected to give him rest, physical happiness, peace
of mind and security. In the last resort, a person's
house, where he lives with his family, is his “castle”; it
is his rampart against encroachment on his personal
liberty. The pregnant words of that famous Judge,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 223 of 567

Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25]
pointing out the importance of the security of one's
privacy against arbitrary intrusion by the police, could
have no less application to an Indian home as to an
American one. If physical restraints on a person's
movements affect his personal liberty, physical
encroachments on his private life would affect it in a
larger degree. Indeed, nothing is more deleterious to
a man's physical happiness and health than a
calculated interference with his privacy. We would,
therefore, define the right of personal liberty in
Article
as a right of an individual to be free from
restrictions or encroachments on his person, whether
those restrictions or encroachments are directly
imposed or indirectly brought about by calculated
measures.

xx xx xx

The freedom of movement in clause (d) of
Article 19

therefore must be a movement in a free country i.e. in
a country where he can do whatever he likes, speak
to whomsoever he wants, meet people of his own
choice without any apprehension, subject of course to
the law of social control. The petitioner under the
shadow of surveillance is certainly deprived of this
freedom. He can move physically, but he cannot do
so freely, for all his activities are watched and noted.

The shroud of surveillance cast upon him perforce
engender inhibitions in him and he cannot act freely
as he would like to do. ”

136) In the case of
District Registrar and Collector, Hyderabad and

Anr. v. Canara Bank and Ors.62
, this Court struck down provisions

of a legislation on grounds that it was too intrusive of citizens’

right to privacy. The case involved an evaluation of the Andhra

Pradesh Stamp Act which authorized the collector to delegate

“any person” to enter any premises in order to search for and

62 (2005) 1 SCC 496

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 224 of 567

impound any document that was found to be improperly stamped.

After an exhaustive analysis of privacy laws across the world, and

in India, the Court held that in the absence of any safeguards as

to probable or reasonable cause or reasonable basis, this

provision was violative of the constitutionally guaranteed right to

privacy “both of the house and of the person”. The Court held:

“The A.P. amendment permits inspection being carried out
by the Collector by having access to the documents which
are in private custody i.e. custody other than that of a
public officer. It is clear that this provision empowers
invasion of the home of the person in whose possession
the documents 'tending' to or leading to the various facts
stated in
sec. 73
are in existence and
sec. 73
being one
without any safeguards as to probable or reasonable cause
or reasonable basis or materials violates the right to
privacy both of the house and of the person. We have
already referred to R. Rajagopal's case wherein the
learned judges have held that the right to personal liberty
also means the life free from encroachments unsustainable
in law and such right flowing from
Article 21
of the
Constitution.”

137) Reference was made to the U.S Supreme Court case of U.S. v.

Jones63 where the court held that installing a Global Positioning

System (GPS) tracking device on a vehicle and using the device

to monitor the vehicle's movements constitutes an unlawful

search under the Fourth Amendment. Sotomayor, J. in her

concurring judgment observed that Fourth Amendment search

and seizure is not only concerned with physical trespassory

intrusions on property but also non-physical violation of privacy
63 132 S.Ct. 945 (2012)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 225 of 567

that society recognizes as reasonable. She notes that GPS data

can reveal an entire profile of a person simply by knowing the

places she visits and that the Government can mine this data in

the future:

“With increasing regularity, the Government will be capable
of duplicating the monitoring undertaken in this case by
enlisting factory or owner-installed vehicle tracking devises
or GPS enabled smart-phones … In cases of electronic or
other novel modes of surveillance that do not depend upon
a physical invasion on property, the trespassory test may
provide little guidance.

xx xx xx

GPS monitoring generates a precise, comprehensive
record of a person’s public movements that reflects a
wealth of detail about her familial, political, professional,
religious, and sexual associations … disclosed GPS data
will be trips to the psychiatrist, plastic surgeon, abortion
clinic, AIDS treatment centre, strip club, criminal defence
attorney …

Government can store such records and efficiently mine
them for information years into the future… awareness that
the government may be watching chills associational and
expressive freedom … it may alter the relationship between
citizen and government in a way that is inimical to
democratic society.

xx xx xx

I would not assume that all information voluntarily disclosed
to some member of the public for a limited purpose is, for
that reason alone, disentitled to Fourth Amendment
protection … (“Privacy is not a discrete commodity,
possessed absolutely or not at all. Those who disclose
certain facts to a bank or phone company for a limited
business purpose need not assume that this information
will be released to other persons for other purposes”) ...
(“[W]hat [a person] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally
protected”).”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 226 of 567

138) The judgment of the ECtHR in Zakharov v. Russia64 was also

referred to where the ECtHR examined an application claiming

violation of
Article 8
of the Convention (right to respect for private

and family life) alleging that the mobile operators had permitted

unrestricted interception of all telephone communications by the

security services without prior judicial authorisation, under the

prevailing national law. The Court observed that:

“Mr Zakharov was entitled to claim to be a victim of a
violation of the European Convention, even though he was
unable to allege that he had been the subject of a concrete
measure of surveillance. Given the secret nature of the
surveillance measures provided for by the legislation, their
broad scope (affecting all users of mobile telephone
communications) and the lack of effective means to
challenge them at national level… Russian law did not
meet the “quality of law” requirement and was incapable of
keeping the interception of communications to what was
“necessary in a democratic society”. There had accordingly
been a violation of
Article 8
of the Convention… existence
of arbitrary and abusive surveillance practices, which
appear to be due to inadequate safeguards provided by
law”.

139) The Court held that any interference with the right to privacy

under
Article 8
can only be justified under
Article 8(2)
if it is in

accordance with law, pursues one or more legitimate aims and is

necessary in a democratic society to achieve such aim. “In

accordance with the law” requires the impugned measure both to

have some basis in domestic law and to be compatible with the

64 (2015) Application No. 47143/2006

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 227 of 567

rule of law, which is expressly mentioned in the Preamble to the

Convention and inherent in the object and purpose of
Article 8.

The law must, thus, meet quality requirements: it must be

accessible to the person concerned and foreseeable as to its

effects. With respect to foreseeability of surveillance, the court

held:

“Foreseeability in the special context of secret measures of
surveillance, such as the interception of communications,
cannot mean that an individual should be able to foresee
when the authorities are likely to intercept his
communications so that he can adapt his conduct
accordingly. However, especially where a power vested in
the executive is exercised in secret, the risks of
arbitrariness are evident. It is therefore essential to have
clear, detailed rules on interception of telephone
conversations, especially as the technology available for
use is continually becoming more sophisticated. The
domestic law must be sufficiently clear to give citizens an
adequate indication as to the circumstances in which and
the conditions on which public authorities are empowered
to resort to any such measures.

xx xx xx

Since the implementation in practice of measures of secret
surveillance of communications is not open to scrutiny by
the individuals concerned or the public at large, it would be
contrary to the rule of law for the discretion granted to the
executive or to a judge to be expressed in terms of an
unfettered power. Consequently, the law must indicate the
scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient
clarity to give the individual adequate protection against
arbitrary interference.”

140) The Court observed that the following minimum safeguards that

should be set out in law in order to avoid abuses of power for

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 228 of 567

surveillance are: the nature of offences which may give rise to an

interception order; a definition of the categories of people liable to

have their telephones tapped; a limit on the duration of telephone

tapping; the procedure to be followed for examining, using and

storing the data obtained; the precautions to be taken when

communicating the data to other parties; and the circumstances

in which recordings may or must be erased or destroyed.

141) For establishing if the measures were “necessary in a democratic

society” in pursuit of a legitimate aim, the Court observed:

“When balancing the interest of the respondent State in
protecting its national security through secret surveillance
measures against the seriousness of the interference with
an applicant’s right to respect for his or her private life, the
national authorities enjoy a certain margin of appreciation
in choosing the means for achieving the legitimate aim of
protecting national security. However, this margin is subject
to European supervision embracing both legislation and
decisions applying it. In view of the risk that a system of
secret surveillance set up to protect national security may
undermine or even destroy democracy under the cloak of
defending it, the Court must be satisfied that there are
adequate and effective guarantees against abuse. The
assessment depends on all the circumstances of the case,
such as the nature, scope and duration of the possible
measures, the grounds required for ordering them, the
authorities competent to authorise, carry out and supervise
them, and the kind of remedy provided by the national law.
The Court has to determine whether the procedures for
supervising the ordering and implementation of the
restrictive measures are such as to keep the “interference”
to what is “necessary in a democratic society”.”

142) Two other cases of violation of Article of the European

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 229 of 567

Convention of Human Rights were cited, namely Digital Rights

Ireland Ltd. v. Minister for Communication, Marine and Natural

Resources65 and S and Marper v. United Kingdom66. In Digital

Ireland, the European Parliament and the Council of the

European Union adopted Directive 2006/24/EC (Directive), which

regulated Internet Service Providers’ storage of

telecommunications data. It could be used to retain data

generated or processed in connection with the provision of

publicly available electronic communications services or of public

communications network for the purpose of fighting serious crime

in the European Union (EU). The data included data necessary to

trace and identify the source of communication and its

destination, to identify the date, time duration, type of

communication, IP address, telephone number and other fields.

The European Court of Justice (ECJ) evaluated the compatibility

of the Directive with
Articles 7
and
of the Charter of

Fundamental Rights of the European Union and declared the

Directive to be invalid. According to the ECJ, the Directive

interfered with the right to respect for private life under
Article 7

and with the right to the protection of personal data under Article

8. It allowed very precise conclusion to be drawn concerning the

65 [2014] All ER (D) 66 (Apr)
66 (2008) ECHR 1581

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 230 of 567

private lives of the persons whose data had been retained, such

as habits of everyday life, permanent or temporary places of

residence, daily and other movements, activities carried out,

social relationships and so on. The invasion of right was not

proportionate to the legitimate aim pursued.

143) In S and Marper, the storing of DNA profiles and cellular samples

of any person arrested in the United Kingdom was challenged

before the ECtHR. Even if the individual was never charged, if

criminal proceedings were discontinued, or if the person was later

acquitted of any crime, their DNA profile could nevertheless be

kept permanently on record. It held that there had been a

violation of
Article 8
of the ECHR. Fingerprints, DNA profiles and

cellular samples, constituted personal data and their retention

was capable of affecting private life of an individual. Retention of

such data without consent, thus, constitutes violation of
Article 8

as they relate to identified and identifiable individuals. The Court

held that invasion of privacy was not “necessary in a democratic

society as it did not fulfill any pressing social need. The blanket

and indiscriminate nature of retention of data was excessive and

did not strike a balance between private and public interest.

144) The respondents, on the other hand, rebutted the arguments of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 231 of 567

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, ethnicity, 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

utilised globally to ascertain the identity of a person. The

argument was, thus, that the information gathered was non-

invasive and non-intrusive identity information.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 232 of 567

145) It was also argued that the very scheme of the Aadhaar and the

manner in which it operates excludes every possibility of data

profiling and, therefore, the question of State surveillance would

not arise. The powerpoint presentation which was given by Dr.

Pandey, as has been stated above, was referred to, on the basis

of which it was argued that the Aadhaar design takes full care of

security of persons.

146) It was also argued by the respondents that identity information

data resides in the CIDR which is not in the control of the

Government or the police force. The Authority is a body

constituted as a body corporate having perpetual succession and

a common seal. It is regulated by substantive and procedural

checks to protect the identity information and authentication

record. This information cannot be published, displayed or posted

publicly. It does not have the authority to carry out surveillance.

The State Governments and the police forces cannot obtain the

information contained in the CIDR or the authentication records

except in two situations contemplated by
Section 33
– (i) When

the District Judge orders so after giving an opportunity of hearing

to the authority (even in this situation core biometric information

will not be shared; and (ii) in the interest of National Security

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 233 of 567

where a Joint Secretary or a superior officer of the Government of

India specially authorizes in this behalf, and in this case every

direction is reviewed by an oversight committee chaired by the

Cabinet Secretary. Further, this direction is limited for three

months and extendable by a further period of 3 months.

147) It was submitted that surveillance, if at all, can only be carried out

by unauthorised use of CIDR information, despite its statutory

prohibition and punitive injunctions or by other means such as

physical surveillance. That is, however, an illegal surveillance.

The architecture of the Act does not allow surveillance. It was

submitted that the petitioners have not made out a case of

surveillance by the Authority but points out a mere possibility of

surveillance.

148) We may reiterate that the argument of surveillance also has the

reflections of privacy and in fact the argument is structured on the

basis that the vital information which would be available with the

Government can be utilised to create the profiling of individuals

and retention of such information in the hands of the respondents

is a risky affair which may enable the State to do the surveillance

of any individual it wants.

149) Insofar as the aspect of privacy of individual is concerned, that

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 234 of 567

would be dealt with in detail while addressing that issue. To

segregate issue of surveillance from privacy, we are focusing the

discussion to the aspect whether there is sufficient data available

with the respondents which may facilitate the profiling and misuse

thereof or whether there are sufficient safeguards to ward off the

same. In the process, we would be discussing the issues

pertaining to data protection as well. At the same time, there

would be some overlapping of discussion inasmuch as it will have

to be seen as to the collection, storage and use of biometric data

satisfies the proportionality principle.

150) It is clear that the argument of the petitioners is that on the basis

of the data available with the Authority, there can be a profiling of

an individual which may make the surveillance state. And such a

mass surveillance is not permitted by the Constitution of India.

The entire foofaraw about the Aadhaar architecture is the so-

called enormous information that would be available to the

Government on using Aadhaar card by residents. Two issues

arise from the respective arguments of the parties:

(a) whether the architecture of the Aadhaar project enables the

Sate to create a regime of surveillance?; and

(b) whether there are adequate provisions for data protection?

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 235 of 567

151) Insofar as issue (a) above is concerned, after going through the

various aspects of the Aadhaar project, the provisions of the

Aadhaar Act and the manner in which it operates, it is difficult to

accept the argument of the petitioners. The respondents have

explained that the enrolment and authentication processes are

strongly regulated so that data is secure. The enrolment agency,

which collects the biometric and demographic of the individuals

during enrolment, is appointed either by UIDAI or by a Registrar

[
Section 2(s)
]. The Registrars are appointed through MoUs or

agreements for enrolment and are to abide by a code of conduct

and processes, policies and guidelines issued by the Authority.

They are responsible for the process of enrolment. Categories of

persons eligible for appointment are limited by the Regulations.

The agency employs a certified supervisor, an operator and a

verifier under Enrolment and Update Regulations. Registrars and

the enrolling agencies are obliged to use the software provided or

authorized by UIDAI for enrolment purpose. The standard

software has security features as specified by the Authority. All

equipment used is as per the specification issued by the

Authority. The Registrars are prohibited from using the

information collected for any purpose other than uploading the

information to CIDR. Sub-contracting of enrolment function is not

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 236 of 567

allowed. The Code of Conduct contains specific directions for

following the confidentiality, privacy and security protocols and

submission of periodic reports of enrolment. Not only there are

directions prohibiting manipulation and fraudulent practices but

the Act contains penal provisions for such violations in Chapter

VII of the Regulations. The enrolment agencies are empanelled

by the Authority. They are given an enrolling agency code using

which the Registrar can onboard such agency to the CIDR. The

enrolment data is uploaded to the Central Identities Data

Repository (CIDR) certified equipment and software with a digital

signature of the Registrar/enrolling agency. The data is encrypted

immediately upon capture. The decryption key is with the UIDAI

solely.
Section 2(ze)
of the Information Technology Act, 2000

(hereinafter referred to as the ‘
IT Act
’) which defines ‘secure

systems’ and
Section 2(w)
of the Act, which defines

‘intermediaries’ apply to the process. Authentication only

becomes available through the Authentication Service Agency

(ASA). They are regulated by the Aadhaar (Authentication)

Regulations, 2016. Their role and responsibilities are provided by

Regulation 19
of the Authentication Regulations. They are to use

certified devices. The equipment or software has to be duly

registered with or approved or certified by the Authority/agency.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 237 of 567

The systems and operations are audited by information system

auditor. The requesting entities pass the encrypted data to the

CIDR through the ASA and the response (Yes/No authentication

or e-KYC information) also takes the same route back. The

server of the ASA has to perform basic compliance and

completeness checks on the authentication data packet before

forwarding it to the CIDR.
The Act
prohibits sharing and

disclosure of core biometric data under
Section 8
and
. Other

identity information is shared with requesting entity (AUAs and

KUAs) only for the limited purpose of authentication. The data is

transferred from the requesting entity to the ASA to the CIDR in

an encrypted manner through a leased line circuitry using secure

Protocols (
Regulation 9
of the Authentication Regulations). The

storage of data templates is in safely located servers with no

public internet inlet/outlet, and offline storage of original

encrypted data (PID blocks). There are safety and security

provisions such as audit by Information Systems Auditor.

Requesting entities are appointed through agreement. They can

enter into agreement with sub-AUA or sub-KUA with permission

of the UIDAI. Whatever identity information is obtained by the

requesting entity is based on a specific consent of the Aadhaar

number holder. The e-KYC data shared with the requesting entity

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 238 of 567

can only be after prior consent of the Aadhaar holder. Such data

cannot be shared and has to be stored in encrypted form. The

biometric information used is not permitted to be stored. Only the

logs of authentication transactions are maintained for a short

period. Full identity information is never transmitted back to the

requesting entity. There is a statutory bar from sharing biometric

information (
Section 29(1)(a)
/
Section 29(4)
). Data centres of

ASA, requesting entities and CIDR should be within the territory

of India. There are various other provisions for monitoring,

auditing, inspection, limits on data sharing, data protection,

punishments etc., grievance redressal mechanism, suspension

and termination of services, etc. so that all actions the entities

involved in the process are regulated.
Regulation 3(i)
& (j) of

Aadhaar (Data Security) Regulation, 2016 enables partitioning of

CIDR network into zones based on risk and trust and other

security measures. CIDR being a computer resource is notified to

be a “Protected System” under
Section 70
of the IT Act by the

Central Government on December 11, 2015. Anyone trying to

unlawfully gain access into this system is liable to be punished

with 10 years imprisonment and fine. The storage involves end to

end encryption, logical partitioning, firewalling and anonymisation

of decrypted biometric data. Breaches of penalty are made

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 239 of 567

punitive by
Chapter VII of the Act
. Biometric information is

deemed to be an “electronic record”, and “Sensitive personal data

or information” under the
IT Act
. There are further guards under

the Aadhaar (Data Security) Regulations, 2016.

152) That apart, we have recorded in detail the powerpoint

presentation that was given by Dr. Ajay Bhushan Pandey, CEO of

the Authority, which brings out the following salient features:

(a) During the enrolment process, minimal biometric data in the

form of iris and fingerprints is collected. The Authority does not

collect purpose, location or details of transaction. Thus, it is

purpose blind. The information collected, as aforesaid, remains

in silos. Merging of silos is prohibited. The requesting agency is

provided answer only in ‘Yes’ or ‘No’ about the authentication of

the person concerned. The authentication process is not

exposed to the Internet world. Security measures, as per the

provisions of Section 29(3) read with Section 38(g) as well as

Regulation 17(1)(d) of the Authentication Regulations are strictly

followed and adhered to.

(b) There are sufficient authentication security measures taken

as well, as demonstrated in Slides 14, 28 and 29 of the

presentation.

(c) The Authority has sufficient defence mechanism, as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 240 of 567

explained in Slide 30. It has even taken appropriate protection

measures as demonstrated in Slide 31.

(d) There is an oversight by Technology and Architecture

Review Board (TARB) and Security Review Committee.

(e) During authentication no information about the nature of

transaction etc. is obtained.

(f) The Authority has mandated use of Registered Devices

(RD) for all authentication requests. With these, biometric data is

signed within the device/RD service using the provider key to

ensure it is indeed captured live. The device provider RD service

encrypts the PID block before returning to the host application.

This RD service encapsulates the biometric capture, signing and

encryption of biometrics all within it. Therefore, introduction of

RD in Aadhaar authentication system rules out any possibility of

use of stored biometric and replay of biometrics captured from

other source. Requesting entities are not legally allowed to store

biometrics captured for Aadhaar authentication under
Regulation

17(1)(a)
of the Authentication Regulations.

(g) The Authority gets the AUA code, ASA code, unique device

code, registered device code used for authentication. It does not

get any information related to the IP address or the GPS location

from where authentication is performed as these parameters are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 241 of 567

not part of authentication (v2.0) and e-KYC (v2.1) API. The

Authority would only know from which device the authentication

has happened, through which AUA/ASA etc. It does not receive

any information about at what location the authentication device

is deployed, its IP address and its operator and the purpose of

authentication. Further, the authority or any entity under its

control is statutorily barred from collecting, keeping or maintaining

any information about the purpose of authentication under

Section 32(3) of the Aadhaar Act.

153) After going through the Aadhaar structure, as demonstrated by

the respondents in the powerpoint presentation from the

provisions of the Aadhaar Act and the machinery which the

Authority has created for data protection, we are of the view that

it is very difficult to create profile of a person simply on the basis

of biometric and demographic information stored in CIDR. Insofar

as authentication is concerned, the respondents rightly pointed

out that there are sufficient safeguard mechanisms. To

recapitulate, it was specifically submitted that there were security

technologies in place (slide 28 of Dr. Pandey’s presentation), 24/7

security monitoring, data leak prevention, vulnerability

management programme and independent audits (slide 29) as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 242 of 567

well as the Authority’s defence mechanism (slide 30). It was

further pointed out that the Authority has taken appropriate pro-

active protection measures, which included disaster recovery

plan, data backup and availability and media response plan (slide

31). The respondents also pointed out that all security principles

are followed inasmuch as: (a) there is PKI-2048 encryption from

the time of capture, meaning thereby, as soon as data is given at

the time of enrolment, there is an end to end encryption thereof

and it is transmitted to the Authority in encrypted form. The said

encryption is almost foolproof and it is virtually impossible to

decipher the same; (b) adoption of best-in-class security

standards and practices; and (c) strong audit and traceability as

well as fraud detection. Above all, there is an oversight of

Technology and Architecture Review Board (TARB) and Security

Review Committee. This Board and Committee consist of very

high profiled officers. Therefore, the Act has endeavoured to

provide safeguards67.

67 We may also take on record responsible statements of the learned Attorney General and Mr.
Dwivedi who appeared for UIDAI that no State would be interested in any mass surveillance of
1.2 Billion people of the country or even the overwhelming majority of officers and employees or
professionals. The very idea of mass surveillance by State which pursues what an ANH does all
the time and based on Aadhaar is an absurdity and an impossibility. According to them, the
petitioners submission is based on too many imaginary possibilities, viz.:

(i) Aadhaar makes it possible for the State to obtain identity information of all ANH. It is
possible that UIDAI would share identity information/authentication records in CIDR
notwithstanding statutory prohibition and punitive injunctions in the Act. It is possible that the
State would unleash its investigators to surveil a sizeable section of the ANH, if not all based on
the authentication records. It is submitted that given the architecture of the Aadhaar Act, there
are no such possibilities and in any event, submission based on imaginary possibility do not
provide any basis for questioning the validity of Aadhaar Act. (ii) None of the writ petitions set
forth specific facts and even allegations that any Aadhaar number holder is being subjected to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 243 of 567

154) Issue (b) relates to data protection. According to the petitioners

there is no data protection and there is a likelihood of misuse of

data/personal information of the individuals.

155) The question to be determined is whether the safeguards

provided for the protection of personal biometric data in the

Aadhaar Act and Rules are sufficient. The crucial tasks that the

Court needs to undertake are – (i) to discuss the significance of

data in the world of technology and its impact; (ii) to determine

the magnitude of protection that should be accorded to collection,

storage and use of sensitive biometric data, so that they can

qualify as proportionate; and (iii) to determine whether the

Aadhaar Act and Rules provide such data protection, thereby

obviating any possibility of surveillance.

(i) Significance of Data:

156) Alvin Toffler in his illuminating article titled ‘What will our future be

like?’ has presented mind boggling ideas. Toffler traces the

transition – from agriculture society to industry society to

knowledge based society. If we go back to the beginnings of time,
surveillance by UIDAI or the Union/States. The emphasis during the argument was only on the
possibility of surveillance based on electronic track trails and authentication records. It was
asserted that there are tools in the market for track back. The entire case was speculative and
conjectural. In Clapper, Director of National Intelligence v. Amnesty International USA, the
majority judgment did not approve the submissions in the context of Foreign Intelligence
Surveillance Act and one of the reason was that the allegations were conjectural and
speculative. There were no facts pleaded on the basis of which the asserted threat could be
fairly traced to. However, we have not deliberated on this argument.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 244 of 567

agriculture was the prime source and the entire mankind was

based on agriculture. 350 years later with the invention of steam

engines came the industrialized age and now what we are living

through is the third gigantic wave, which is way more powerful

than industrialized age. An age that is based on knowledge.

Toffler emphasises that in today’s society the only thing that leads

to creation of wealth is knowledge. Unlike the past wherein

economics was described as the science of the allocation of

scarce resources, today we are primarily dependent on

knowledge and that is not a scarce resource. Times are

changing, we can no longer trust the straight line projection. His

view is that we are going from a society which is more and more

uniform to a highly de-massified society. Knowledge is power.

We are in the era of information. Probably what Toffler is hinting

is that access to this vast reservoir of information is available in

digital world. Information is available online, at the touch of a

button. With this, however, we usher into the regime of data.

157) In a recent speech by Mr. Benjamin Netanyahu, Prime Minister of

Israel, while talking about innovation and entrepreneurship, he

brought out an interesting phenomena in the world of free market

principles, i.e. in the era of globalisation, in the following words:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 245 of 567

“Look at the ten leading companies in 2006, five energy
companies, one IT company Microsoft and a mere ten
years later, in 2016, a blink of an eye, in historical terms, its
completely reversed, five IT companies one energy
company left. The true wealth is in innovation - you know
these companies - Apple, Google, Microsoft, Amazon,
Facebook.”

158) He adds by making a significant statement as the reason behind

this change:

“...there is a reason something is going on, it’s a great
change - you want to hear a jargan – it’s a one sentence,
this is a terrible sentence, but I have no other way to say,
it’s a confluence of big data, connectivity and artificial
intelligence. Ok, you get that? You know what that does – it
revolutionises old industries and it creates entirely new
industries, so here is an old industry that Israel was always
great in – Agriculture. We are always good in agriculture
but now we have precision agriculture. You know what that
is? See that drone in the sky is connected to a big
database and there is sensor at the field and in the field
there is drip irrigation and drip fertilization and now we can
target with this technology the water that we give, the
fertilizer that we give down to the individual plant that
needs it. That’s precision agriculture, that’s Israel.
Unbelievable.”

159) This brings us to the world of data – big data. It has its own

advantages of tremendous nature. It is making life of people

easier. People can connect with each other even when they are

located at places far away from each other. Not only they can

converse with each other but can even see each other while

talking. There is a wealth of information available on different

networks to which they can easily access and satisfy their quest

for knowledge within seconds by getting an answer. People can

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 246 of 567

move from one place to the other with the aid of Global

Positioning System (GPS). They can hear music and watch

movies on their handy gadgets, including smart cellphones. We

are in the age of digital economy which has enabled multiple

avenues for a common man. Internet access is becoming

cheaper by the day, which can be accessed not only through the

medium of desktop computers or laptops and even other handy

gadgets like smart phones. Electronic transactions like online

shopping, bill payments, movie/train/air ticket bookings, funds

transfer, e-wallet payments, online banking and online insurance

etc. are happening with extreme ease at the touch of a finger.

Such tasks can be undertaken sitting in drawing rooms. Even

while travelling from one place to the other in their car, they can

indulge in all the aforesaid activities. In that sense, technology

has made their life so easy.

160) However, there is another side to do as well, like any coin which

has two sides. The use of such technologies is at the cost of

giving away personal information, which is in the realm of privacy.

In order to connect with such technologies and avail their

benefits, the users are parting with their biometric information like

fingerprints and iris as well as demographic information like their

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 247 of 567

names, parentage, family members, their age, even personal

information like their sex, blood group or even the ailments they

are suffering from. Not only this, use of aforesaid facilities on net

or any portal like Apple, Google, Facebook etc. involves tracking

their movements, including the nature of activities, like the kind of

shopping, the places from where shopping is done, the actual

money spent thereon, the nature of movies watched etc. All this

data is there with the companies in respect of its users which may

even turn into metadata. In fact, cases after cases are reported

where such data of users is parted with various purposes.

Interestingly, for using such facilities, people knowingly and

willingly, are ready to part with their vital personal information.

Every transaction on a digital platform is linked with some form of

sensitive personal information. It can be an individual’s user

name, password, account number, PAN number, biometric

details, e-mail ID, debit/credit card number, CVV number and

transaction OTP etc.

161) These have raised concerns about the privacy and protection of

data, which has become a matter of great concern. Problem is

not limited to data localisation but has become extra-territorial.

There are issues of cross-border transfers of personal data,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 248 of 567

regulation whereof is again a big challenge with which various

opinions are grappling. There are even talks of convergence of

regulatory regime in this behalf so that uniform approach is

adopted in providing a legal ecosystem to regulate cross-border

data transfer. Asian Business Law Institute (ABLI), in

collaboration with Singapore Academy of Law (SAL) has, after

undertaking in-depth study, compiled 14 country reports in their

respective jurisdictions on the regulation of cross-border data

transfer and data localisation in Asia.

162) In the aforesaid scenario, interesting issue is posed by the

respondents, viz., when so much personal information about

people is already available in public domain, how can there be an

expectancy of data privacy. That aspect is dealt with while

discussing the issue of privacy. Here, we are concerned with

data protection under Aadhaar that is available with the State. As

pointed out above, even in respect of private players, the data

protection has become a matter of serious concern. When it

comes to the State or the instrumentality of the State, the matter

has to be taken with all seriousness, on the touchstone of

constitutionalism and the concept of limited Government.

(ii) Law on Data Protection:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 249 of 567

163) In order to determine this aspect, i.e. the nature and magnitude of

data protection that is required to enable legal collection and use

of biometric data, reliance can be placed on – (a) various existing

legislations – both in India and across the world; and (b) case law

including the judgment in K.S. Puttaswamy.

(a) Legislation in India:

(i)
Information Technology Act
, 2000

The only existing legislation covering data protection related

to biometric information are
Section 43A
and
Section 72A
of the

IT Act and the Information Technology (Reasonable Security

Practices and Procedures and Sensitive Personal Data or

Information) Rules, 2011 (hereinafter “Sensitive Personal Data

Rules”). Although the IT Act and Rules do not determine the

constitutionality of use of biometric data and information by the

Aadhaar Act and Rules, they are instructive in determining the

safeguards that must be taken to collect biometric information 68.

164) Following are the provisions which cover biometric information

under the
IT Act
:

Section 43A
of the IT Act attaches liability to a body

corporate, which is possessing, handling and dealing with any

68 A challenge to the Aadhaar project for violation of
IT Act
and Rules has been filed in the Delhi
High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore, we are not dealing
with this aspect, nor does it arise for consideration in these proceedings.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 250 of 567

‘sensitive personal information or data’ and is negligent in

implementing and maintaining reasonable security practices

resulting in wrongful loss or wrongful gain to any person.

‘Sensitive personal information or data’ is defined under Rule 3 of

the Sensitive Personal Data Rules to include information relating

to biometric data.
Section 43A
reads as follows:

“43A. Compensation for failure to protect data. -Where
a body corporate, possessing, dealing or handling any
sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security
practices and procedures and thereby causes wrongful
loss or wrongful gain to any person, such body corporate
shall be liable to pay damages by way of compensation to
the person so affected.

Explanation. -For the purposes of this section,-

(i) "body corporate" means any company and includes
a firm, sole proprietorship or other association of
individuals engaged in commercial or professional
activities;

(ii) "reasonable security practices and procedures"

means security practices and procedures designed to
protect such information from unauthorised access,
damage, use, modification, disclosure or impairment, as
may be specified in an agreement between the parties or
as may be specified in any law for the time being in force
and in the absence of such agreement or any law, such
reasonable security practices and procedures, as may be
prescribed by the Central Government in consultation with
such professional bodies or associations as it may deem
fit;

(iii) "sensitive personal data or information" means such
personal information as may be prescribed by the Central
Government in consultation with such professional bodies
or associations as it may deem fit.]”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 251 of 567

165) Similarly,
Section 72A
of the IT Act makes intentional disclosure

of ‘personal information’ obtained under a contract, without

consent of the parties concerned and in breach of a lawful

contract, punishable with imprisonment and fine. Rule 2(i) of the

Sensitive Personal Data Rules define "personal information" to

mean any information that relates to a natural person, which,

either directly or indirectly, in combination with other information

available or likely to be available with a body corporate, is

capable of identifying such person. Thus, biometrics will form a

part of “personal information”. The Section reads as under-

“72A. Punishment for disclosure of information in
breach of lawful contract - Save as otherwise provided in
this Act or any other law for the time being in force, any
person including an intermediary who, while providing
services under the terms of lawful contract, has secured
access to any material containing personal information
about another person, with the intent to cause or knowing
that he is likely to cause wrongful loss or wrongful gain
discloses, without the consent of the person concerned, or
in breach of a lawful contract, such material to any other
person, shall be punished with imprisonment for a term
which may extend to three years, or with fine which may
extend to five lakh rupees, or with both.”

166) The Sensitive Personal Data Rules provide for additional

requirements on commercial and business entities (body

corporates as defined under
Section 43A
of the IT Act) relating to

the collection and disclosure of sensitive personal data (including

biometric information). The crucial requirements, which are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 252 of 567

indicative of the principles for data protection that India adheres

to, inter alia include:

(i) The body corporate or any person who on behalf of body

corporate collects, receives, possesses, stores, deals or handle

information of provider of information, shall provide a privacy

policy for handling of or dealing in personal information including

sensitive personal data or information and ensure that the same

are available for view.

(ii) Body corporate or any person on its behalf shall obtain

consent in writing from the provider of the sensitive personal data

or information regarding purpose of usage before collection of

such information.

(iii) Body corporate or any person on its behalf shall not collect

sensitive personal data or information unless — (a) the

information is collected for a lawful purpose connected with a

function or activity of the body corporate or any person on its

behalf; and (b) the collection of the sensitive personal data or

information is considered necessary for that purpose

(iv) The person concerned has the knowledge of — (a) the fact

that the information is being collected; (b) the purpose for which

the information is being collected; (c) the intended recipients of

the information; and (d) name and address of the agency

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 253 of 567

collecting and retaining the information.

(v) Body corporate or any person on its behalf holding sensitive

personal data or information shall not retain that information for

longer than is required for the purposes for which the information

may lawfully be used or is otherwise required under any other law

for the time being in force.

(vi) Information collected shall be used for the purpose for

which it has been collected.

(vii) Body corporate or any person on its behalf shall, prior to the

collection of information, including sensitive personal data or

information, provide an option to the provider of the information to

not to provide the data or information sought to be collected.

(viii) Body corporate shall address any discrepancies and

grievances of their provider of the information with respect to

processing of information in a time bound manner.

(ix) Disclosure of sensitive personal data or information by body

corporate to any third party shall require prior permission from the

provider of such information, who has provided such information

under lawful contract or otherwise, unless such disclosure has

been agreed to in the contract between the body corporate and

provider of information, or where the disclosure is necessary for

compliance of a legal obligation.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 254 of 567

(x) A body corporate or a person on its behalf shall comply with

reasonable security practices and procedure i.e. implement such

security practices and standards and have a comprehensive

documented information security programme and information

security policies that contain managerial, technical, operational

and physical security control measures that are commensurate

with the information assets being protected with the nature of

business. In the event of an information security breach, the

body corporate or a person on its behalf shall be required to

demonstrate, as and when called upon to do so by the agency

mandated under the law, that they have implemented security

control measures as per their documented information security

programme and information security policies.

The above substantive and procedural safeguards are

required for legal collection, storage and use of biometric

information under the
IT Act
. They indicate the rigour with which

such processes need to be carried out.

Position in other countries:

(a) EUGDPR (European Union General Data Protection
Regulation)69

69 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 255 of 567

EUGDPR which was enacted by the EU in 2016 came into

force on May 25, 2018 replacing the Data Protection Directive of

1995. It is an exhaustive and comprehensive legal framework that

is aimed at protection of natural persons from the processing of

personal data and their right to informational privacy. It deals with

all kinds of processing of personal data while delineating rights of

data subjects and obligations of data processors in detail. The

following fundamental principles of data collection, processing,

storage and use reflect the proportionality principle underpinning

the EUGDPR -

(i) the personal data shall be processed lawfully, fairly, and in a

transparent manner in relation to the data subject (principle of

lawfulness, fairness, and transparency);

(ii) the personal data must be collected for specified, explicit,

and legitimate purposes (principle of purpose limitation);

(iii) processing must also be adequate, relevant, and limited to

what is necessary (principle of data minimization) as well as

accurate and, where necessary, kept up to date (principle of

accuracy);

(iv) data is to be kept in a form that permits identification of data

subjects for no longer than is necessary for the purposes for

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 256 of 567

which the personal data are processed (principle of storage

limitation);

(v) data processing must be secure (principle of integrity and

confidentiality); and

(vi) data controller is to be held responsible (principle of

accountability).

167) The EUGDPR under
Article 9
prohibits the collection of biometric

data unless except in few circumstances which include (but are

not limited to) -

(a) there is an explicit consent by the party whose data is being

collected. The consent should be freely given, which is clearly

distinguishable in an intelligible and easily accessible form, using

clear and plain language. This consent can be withdrawn at any

time without affecting the actions prior to the withdrawal;

(b) processing is necessary for the purposes of carrying out the

obligations and exercising specific rights of the controller or of the

data subject in the field of employment and social security and

social protection law;

(c) processing relates to personal data which is manifestly

made public by the data subject; and

(d) processing is necessary for reasons of substantial public

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 257 of 567

interest, and it shall be proportionate to the aim pursued, respect

the essence of the right to data protection and provide for suitable

and specific measures to safeguard the fundamental rights and

the interests of the data subject.

168) The Regulation also institutes rights of the data subject (the

person whose data is collected), subject to exceptions, which

include the data subject’s right of access to information about the

purpose of collection of data, details of data controller and

subsequent use and transfer of data, the data subject’s right to

rectification of data, right to erasure or right to be forgotten, the

data subject’s right to restriction of processing, the right to be

informed, the right to data portability and the data subject’s right

to object to illegitimate use of data.

(b) Biometric Privacy Act in the United States of America

169) Some States in the United States of America have laws

regulating collection and use of biometric information. Illinois has

passed Biometric Information Privacy Act (740 ILCS 14/1 or

BIPA) in 2008. Texas has also codified the law for capture of use

of biometric identifier (Tex. Bus. & Com. Code Ann. §503.001) in

2009. The Governor of the Washington State signed into law

House Bill 1493 (“H.B. 1493”) on May 16, 2017, which sets forth

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 258 of 567

requirements for businesses who collect and use biometric

identifiers for commercial purposes. BIPA, Illinois, for example

makes it unlawful for private entities to collect, store, or use

biometric information, such as retina/iris scans, voice scans, face

scans, or fingerprints, without first obtaining individual consent for

such activities. BIPA also requires that covered entities take

specific precautions to secure the information.

(b) Case Laws:

170) In K.S. Puttaswamy’s judgment, all the Judges highlighted the

importance of informational privacy in the age of easy access,

transfer, storage and mining of data. The means of aggregation

and analysis of data of individuals through various tools are

explained. Chandrachud, J. observed that with the increasing

ubiquity of electronic devices, information can be accessed,

stored and disseminated without notice to the individual.

Metadata and data mining make the individual’s personal

information subject to private companies and the state. In this

background, His Lordship discusses the necessity of a data

protection regime for safeguarding privacy and protecting the

autonomy of the individual. The following observations in the

conclusion of the judgment are worth quoting:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 259 of 567

“328. Informational privacy is a facet of the right to privacy.

The dangers to privacy in an age of information can
originate not only from the state but from non-state actors
as well. We commend to the Union Government the need
to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful
and sensitive balance between individual interests and
legitimate concerns of the state. The legitimate aims of the
state would include for instance protecting national
security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing
the dissipation of social welfare benefits. These are matters
of policy to be considered by the Union government while
designing a carefully structured regime for the protection of
the data. Since the Union government has informed the
Court that it has constituted a Committee chaired by
Hon’ble Shri Justice B N Srikrishna, former Judge of this
Court, for that purpose, the matter shall be dealt with
appropriately by the Union government having due regard
to what has been set out in this judgment.”

171) S.K. Kaul, J. cited the European Union General Data Protection

Regulations70 to highlight the importance of data protection and

the circumstances in which restrictions on the right to privacy may

be justifiable subject to the principle of proportionality. These

include balance against other fundamental rights, legitimate

national security interest, public interest including scientific or

historical research purposes or statistical purposes, criminal

offences, tax purposes, etc.

172) There are numerous case laws – both American and European –

presented by the petitioners and the respondents with respect to

70 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 260 of 567

the collection, storage and use of biometric data which have been

taken note of above. They are illustrative of the method and

safeguards required to satisfy the proportionality principle while

dealing with biometric data. The first set of cases cited by the

petitioners are cases from European Human Rights Courts.

173) The European Human Rights legislations have both explicitly and

through case laws recognized the right to informational privacy

and data protection. The EU Charter of Fundamental Rights

states in
Article 7
that ‘everyone has the right to respect for his or

her private and family life, home and communications’ and in

Article 8
it grants a fundamental right to protection of personal

data. The first article of the EU Charter affirms the right to respect

and protection of human dignity. The ECHR also recognises the

right to respect for private and family life, home and his

correspondence which have been read to include protection of

right to control over personal biometric information.

174) As pointed out above as well, a prominent case which addresses

the question of storage of biometric data, i.e. whether storage

and retention of DNA samples and fingerprints violates
Article 8
of

the ECHR, is S and Marper71. In this case, the storing of DNA

71 S and Marper v. United Kingdom [2008] ECHR 1581

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 261 of 567

profiles and cellular samples of any person arrested in the United

Kingdom was challenged before the ECtHR. Even if the individual

was never charged or if criminal proceedings were discontinued

or if the person was later acquitted of any crime, their DNA profile

could nevertheless be kept permanently on record without their

consent.

175) In a unanimous verdict, the seventeen-judge bench held that

there had been a violation of
Article 8
of the ECHR. Fingerprints,

DNA profiles and cellular samples, constituted personal data and

their retention was capable of affecting private life of an

individual. The retention of such data without consent, thus,

constitutes violation of
Article 8
as they relate to identified and

identifiable individuals. It held that:

“84. …fingerprints objectively contain unique information
about the individual concerned allowing his or her
identification with precision in a wide range of
circumstances. They are thus capable of affecting his or
her private life and retention of this information without the
consent of the individual concerned cannot be regarded as
neutral or insignificant.”

176) It articulated the proportionality principle in the following words:

“101. An interference will be considered “necessary in a
democratic society” for a legitimate aim if it answers a
“pressing social need” and, in particular, if it is
proportionate to the legitimate aim pursued and if the
reasons adduced by the national authorities to justify it are
"relevant and sufficient

xx xx xx

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 262 of 567

The protection of personal data is of fundamental
importance to a person's enjoyment of his or her right to
respect for private and family life, as guaranteed by
Article
of the Convention. The domestic law must afford
appropriate safeguards to prevent any such use of
personal data as may be inconsistent with the guarantees
of this Article. The need for such safeguards is all the
greater where the protection of personal data undergoing
automatic processing is concerned, not least when such
data are used for police purposes. The domestic law
should notably ensure that such data are relevant and not
excessive in relation to the purposes for which they are
stored; and preserved in a form which permits identification
of the data subjects for no longer than is required for the
purpose for which those data are stored … The domestic
law must also afford adequate guarantees that retained
personal data was efficiently protected from misuse and
abuse.”

177) The issue in the case according to the Court was whether the

retention of the fingerprints and DNA data of the applicants, as

persons who had been suspected but not convicted of certain

criminal offences, was justified under
Article 8
of the Convention.

178) The Court held that such invasion of privacy was not

proportionate as it was not “necessary in a democratic society” as

it did not fulfill any pressing social need. The blanket and

indiscriminate nature of retention of data was excessive and did

not strike a balance between private and public interest. It held:

“125. the blanket and indiscriminate nature of the powers
of retention of the fingerprints, cellular samples and DNA
profiles of persons suspected but not convicted of offences,
as applied in the case of the present applicants, fails to
strike a fair balance between the competing public and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 263 of 567

private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this
regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants' right to
respect for private life and cannot be regarded as
necessary in a democratic society. This conclusion
obviates the need for the Court to consider the applicants'
criticism regarding the adequacy of certain particular
safeguards, such as too broad an access to the personal
data concerned and insufficient protection against the
misuse or abuse of such data.”

179) The two crucial aspects of the case that need to be kept in mind

are – First, in that case, the fingerprints were collected for

criminal purposes and without the consent of the individual to

whom the fingerprints belonged. Second, the fingerprints were to

be stored indefinitely without the consent of the individual and

that the individual did not have an option to seek deletion. These

aspects were vital for the Court to decide that the retention

violated the citizen’s right to privacy.

180) Similarly, in the Digital Ireland case72, the European Parliament

and the Council of the European Union adopted Directive

2006/24/EC (Directive), which regulated Internet Service

Providers’ storage of telecommunications data. It could be used

to retain data which was generated or processed in connection

with the provision of publicly available electronic communications

services or of public communications network, for the purpose of

72 Digital Rights Ireland Ltd v Minister for Communication, Marine and Natural Resources [2014] All
ER (D) 66 (Apr)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 264 of 567

fighting serious crime in the European Union. The data included

data necessary to trace and identify the source of communication

and its destination, to identify the date, time duration, type of

communication, IP address, telephone number and other fields.

The Court of Justice of European Court (CJEU) evaluated the

compatibility of the Directive with
Articles 7
and
of the Charter

and declared the Directive to be invalid.

181) According to the CJEU, the Directive interfered with the right to

respect for private life under
Article 7
and with the right to the

protection of personal data under
Article 8
of the Charter of

Fundamental Rights of the European Union. It allowed very

precise conclusion to be drawn concerning the private lives of the

persons whose data had been retained, such as habits of

everyday life, permanent or temporary places of residence, daily

and other movements, activities carried out, social relationships

and so on. The invasion of right was not proportionate to the

legitimate aim pursued for the following reasons:

(i) Absence of limitation of data retention pertaining to a

particular time period and/or a particular geographical zone

and/or to a circle of particular persons likely to be involved.

(ii) Absence of objective criterion, substantive and procedural

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 265 of 567

conditions to determine the limits of access of the competent

national authorities to the data and their subsequent use for the

purposes of prevention, detection or criminal prosecutions. There

was no prior review carried out by a court or by an independent

administrative body whose decision sought to limit access to the

data and their use to what is strictly necessary for attaining the

objective pursued.

(iii) Absence of distinction being made between the categories

of data collected based on their possible usefulness.

(iv) Period of retention i.e. 6 months was very long being not

based on an objective criterion.

(v) Absence of rules to protect data retained against the risk of

abuse and against any unlawful access and use of that data.

(vi) Directive does not require the data in question to be

retained within the European Union.

182) In Tele2 Sverige AB vs. Post-och telestyrelsen73, the CJEU was

seized with the issue as to whether in light of Digital Rights

Ireland, a national law which required a provider of electronic

communications services to retain meta-data (name, address,

telephone number and IP address) regarding users/subscribers

for the purpose of fighting crime was contrary to Article 7, 8 and

73 Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v.
Tom Watson, Peter Brice, Geoffrey Lewis, Joined Cases C-203/15 and C-698/15, 2016

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 266 of 567

11 of the EU Charter. The CJEU struck down the provision

allowing collection of such meta data on grounds of lack of

purpose limitation, data differentiation, data protection, prior

review by a court or administrative authority and consent,

amongst other grounds. It held:

“103. While the effectiveness of the fight against serious
crime, in particular organised crime and terrorism (…)
cannot in itself justify that national legislation providing for
the general and indiscriminate retention of all traffic and
location data should be considered to be necessary for the
purposes of that fight.

xx xx xx

105. Second, national legislation (…) provides for no
differentiation, limitation or exception according to the
objective pursued. It is comprehensive in that it affects all
persons using electronic communication services, even
though those persons are not, even indirectly, in a situation
that is liable to give rise to criminal proceedings. It
therefore applies even to persons for whom there is no
evidence capable of suggesting that their conduct might
have a link, even an indirect or remote one, with serious
criminal offences. Further, it does not provide for any
exception, and consequently it applies even to persons
whose communications are subject, according to rules of
national law, to the obligation of professional secrecy.

xx xx xx

if it is to be ensured that data retention is limited to what is
strictly necessary, it must be observed that, while those
conditions may vary according to the nature of the
measures taken for the purposes of prevention,
investigation, detection and prosecution of serious crime,
the retention of data must continue nonetheless to meet
objective criteria, that establish a connection between the
data to be retained and the objective pursued. In particular,
such conditions must be shown to be such as actually to
circumscribe, in practice, the extent of that measure and,
thus, the public affected.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 267 of 567

183) With respect to measures for data security and data protection

the court held :

“122. Those provisions require those providers to take
appropriate technical and organisational measures to
ensure the effective protection of retained data against
risks of misuse and against any unlawful access to that
data. Given the quantity of retained data, the sensitivity of
that data and the risk of unlawful access to it, the providers
of electronic communications services must, in order to
ensure the full integrity and confidentiality of that data,
guarantee a particularly high level of protection and
security by means of appropriate technical and
organisational measures. In particular, the national
legislation must make provision for the data to be retained
within the European Union and for the irreversible
destruction of the data at the end of the data retention
period.”

184) In BVerfG74, the German Constitutional Court rendered on March

02, 2010 a decision by which provisions of the data retention

legislation adopted for, inter alia, the prevention of crime were

rendered void because of lack of criteria for rendering the data

retention proportional.

185) In Maximillian Schrems v. Data Protection Commissioner75, the

CJEU struck down the transatlantic US-EU Safe Harbor

agreement that enabled companies to transfer data from Europe

to the United States on the ground that there was not an

adequate level of safeguard to protect the data. It held that the

74 2.03. 2010, 1 BvR 256 / 08 , 1 BvR 263 / 08 , 1 BvR 586 / 08
75 [2016] 2 W.L.R. 873

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 268 of 567

U.S. authorities could access the data beyond what was strictly

necessary and proportionate to the protection of national security.

The subject had no administrative or judicial means of accessing,

rectifying or erasing their data.

186) In Szabo and Vissy v. Hungary76, the ECtHR held unanimously

that there had been a violation of
Article 8 (right to respect for

private
and family life, the home and correspondence) of the

European Convention on Human Rights. The case concerned

Hungarian legislation on secret anti-terrorist surveillance

introduced in 2011. The court held that the legislation in question

did not have sufficient safeguards to avoid abuse. Notably, the

scope of the measures could include virtually anyone in Hungary,

with new technologies enabling the Government to intercept

masses of data easily concerning even persons outside the

original range of operation. Furthermore, the ordering of such

measures was taking place entirely within the realm of the

executive and without an assessment of whether interception of

communications was strictly necessary. There were no effective

remedial measures in place, let alone judicial ones. The court

held:

“77. … Rule of law implies, inter alia, that an interference
by the executive authorities with an individual right should
76 Eur. Ct. H.R. 2016

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 269 of 567

be subject to an effective control which should normally be
assured by the judiciary, at least in the last resort…”

187) Thus, it is evident from various case laws cited above, that data

collection, usage and storage (including biometric data) in Europe

requires adherence to the principles of consent, purpose and

storage limitation, data differentiation, data exception, data

minimization, substantive and procedural fairness and

safeguards, transparency, data protection and security. Only by

such strict observance of the above principles can the State

successfully discharge the burden of proportionality while

affecting the privacy rights of its citizens.

188) The jurisprudence with respect to collection, use and retention of

biometric information in the United States differs from the EU. In

the US context, there is no comprehensive data protection

regime. This is because of the federal system of American

government, there are multiple levels of law

enforcement―federal, state, and local. Different states have

differing standards for informational privacy. Moreover, the U.S.

has a sectoral approach to privacy, i.e. laws and regulations

related to data differ in different sectors such as health sector or

student sector. In most cases, however, the Fourth Amendment

which prohibits “unreasonable searches and seizures” by the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 270 of 567

government has been read by courts to envisage various levels

data protection.

189) At this juncture, we are not entering the debate as to whether the

jurisprudence developed in United States is to be preferred or

E.U. approach would be more suitable. Fact remains that

importance to data protection in processing the data of the

citizens is an accepted norm.

190) Observance of this fundamental principle is necessary to prevent

a disproportionate infringement of the Fundamental Right of

Privacy of a citizen. The question which now needs to be

addressed is whether the Aadhaar Act and Rules incorporate

these principles of data protection. We have already taken note

of the provisions in the Act, which relate to data protection.

However, a detailed analysis of the provisions of the Act needs to

be undertaken for this purpose having regard to the principles

that have emerged from case law in other jurisdiction and noted

in paragraph 187 above.

Data Minimisation:

191) The petitioners have argued that the Act enables data collection

indiscriminately regarding all aspects of a person (biometrics,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 271 of 567

demographic details, authentication records, meta-data related to

transaction) even though such data has no nexus to the

purported object of subsidies, thus violating the principle of data

minimization. The data collected is sufficient to indicate religion,

class, social status, income, education and intimate personal

details. Under
Section 32
of the Act, authentication records are

stored in the central database in the manner prescribed under the

Regulations.
Regulation 26
of the Authentication Regulations

requires UIDAI to store “authentication transaction data”

consisting of: (a) authentication request data received including

PID block; (b) authentication response data sent; (c) meta data

related to the transaction; and (d) any authentication server side

configurations as necessary. The authentication record affords

access to information that can be used and analyzed to

systematically track or profile an individual and her activities.

192) As per the respondents, Aadhaar involves minimal identity

information for effective authentication. Four types of information

collected for providing Aadhaar:

(i) Mandatory demographic information comprising name, date of

birth, address and gender [
Section 2(k)
read with
Regulation 4(1)

of the Aadhaar (Enrolment and Update) Regulations, 2016];

(ii) Optional demographic information [
Section 2(k)
read with

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 272 of 567

Regulation 4(2)
of the Aadhaar (Enrolment and Update)

Regulations, 2016];

(iii) Non-core biometric information comprising photograph;

(iv) Core biometric information comprising finger print and iris

scan.

193) Demographic information, both mandatory and optional, and

photographs does not raise a reasonable expectation of privacy

under
Article 21
unless under special circumstances such as

juveniles in conflict of law or a rape victim’s identity. Today, all

global ID cards contain photographs for identification alongwith

address, date of birth, gender etc. The demographic information

is readily provided by individuals globally for disclosing identity

while relating with others and while seeking benefits whether

provided by government or by private entities, be it registration for

citizenship, elections, passports, marriage or enrolment in

educational institutions. Email ids and phone numbers are also

available in public domain, For example in telephone directories.

Aadhaar Act only uses demographic information which are not

sensitive and where no reasonable expectation of privacy exists -

name, date of birth, address, gender, mobile number and e mail

address.
Section 2(k)
specifically provides that Regulations

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 273 of 567

cannot include race, religion, caste, tribe, ethnicity, language,

records of entitlement, income or medical history. Thus, sensitive

information specifically stand excluded.

194) We find that Section 32 (3) of the Aadhaar Act specifically

prohibits the authority from collecting, storing or maintaining,

either directly or indirectly any information about the purpose of

authentication. The proviso to
Regulation 26
of Authentication

Regulations is also to the same effect.

195) Thus, the principle of data minimization is largely followed.

196) With this, we advert to some other provisions, challenge whereof

is based on threat to security of the data. These are
Section 2(c)
,

Section 2(g)
and
Section 2(h)
read with Section 10 of the

Aadhaar Act.
Section 2(c)
pertains to authentication. It is a

process by which Aadhaar number along with demographic

information or biometric information of an individual is submitted

to the CIDR for its verification. On submission thereof, the CIDR

verifies the correctness or lack of it. CIDR is defined in
Section

2(h)
.
Section 10
lays down that the Authority may engage one or

more entities to establish or maintain the CIDR and to perform

any other functions as may be specified by regulations.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 274 of 567

197) Insofar as authentication process is concerned, that has already

been taken note of above. The manner in which it is explained by

the respondent authority, that may not pose much of a problem.

As noted earlier, while seeking authentication, neither the location

of the person whoso identity is to be verified nor the purpose for

which authentication of such identity is needed, comes to the

knowledge of the Authority and, therefore, such data collected by

the Authority. Therefore, the threat to real time surveillance and

profiling may be far-fetched. The respondents have explained

that
Section 2(d)
defines “authentication record” to mean the

record of the time of authentication, identity of the RE and the

response provided by the authority”,
Regulation 26 (a)
to (d) does

not go beyond the scope of
Section 2(d)
. None of the four

clauses of
Regulation 26
entitle the authority to store data about

the purpose for which authentication is being done. The device

can therefore only tell the authority the identity of the RE, the PID,

the time and nature of response, the code of the device and the

authentication server side configurations. Identity of the RE does

not include details of the organization which is seeking

authentication as an RE provides authentication service to large

number of government organizations who have agreements with

it. Such a mechanism preventing the authority from tracking the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 275 of 567

nature of activity for which the authentication was required. To

illustrate nic.in is an RE which provides authentication service to

large number of Government organisations who have

agreements with it. The authentication record would only contain

information about the identity about the RE. It will give

information only about the RE (nic.in) and not about the

organisation which is requiring authentication through the RE. In

most cases the authentication is one time. Mr. Dwivedi has also

explained that yet again, there may be organisations, which have

branches in different part of India. Assuming Apollo Hospital

(although in fact it is not an RE) has five branches in India. If

Apollo Hospital seeks authentication as an RE, the authentication

record will merely tell the identity of Apollo Hospital and its device

code, but it will not indicate which branch of Apollo was seeking

authentication and from which part of the country. Further,

assuming that the Indira Gandhi International Airport is an RE

and there is requirement of authentication at the point of entry

and/or exit. All that the record will show that the ANH has entered

the airport at a particular time but it will not show by which plane

he is flying and to what destination. At the time of exit, it will only

show that the person has exited the airport at a particular time. It

will not show from which flight he has arrived and from which

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 276 of 567

destination and at what time he has arrived or with whom he

travelled.

198) However, other apprehension of the petitioners is that storing of

data for a period of seven years as per Regulations 20 and 26/27

of the Aadhaar (Authentication) Regulations, 2016 is too long a

period. We may reproduce Regulations 26 and 27 of the Aadhaar

(Authentication) Regulations, 2016 hereunder:

“26. Storage and Maintenance of Authentication
Transaction Data – (1) The Authority shall store and
maintain authentication transaction data, which shall
contain the following information:-

(a) authentication request data received including PID
block;

(b) authentication response data sent;

(c) meta data related to the transaction;

(d) any authentication server side configurations as
necessary:

Provided that the Authority shall not, in any case, store the
purpose of authentication.

27. Duration of storage – (1) Authentication transaction
data shall be retained by the Authority for a period of 6
months, and thereafter archived for a period of five years.

(2) Upon expiry of the period of five years specified in sub-
regulation (1), the authentication transaction data shall be
deleted except when such authentication transaction data
are required to be maintained by a court or in connection
with any pending dispute.”

199) It is also submitted that
Section 10
which authorises the Authority

to engage one or more entities, which may be private entities, to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 277 of 567

establish and maintain CIDR is a serious threat to privacy and it

even amounts to compromise on national sovereignty and

security. Insofar as first argument is concerned, there appears to

be some force in that. If authentication is the only purpose, we

fail to understand why this authentication record is needed to be

kept for a period of 2+5 years. No satisfactory explanation in this

behalf was given.

200) Insofar as information regarding metadata is concerned, we may

note that the respondents distinguished between three types of

meta-data :technical, business and process metadata. Process

metadata describes the results of various operations such as logs

key data, start time, end time, CPU seconds used, disk reads,

disk writes, and rows processed. This data is valuable for

purposes of authenticating transaction, troubleshooting , security,

compliance and monitoring and improving performance. They

submit that the metadata contemplated under this Regulation is

Process metadata.

201) However, metadata is not defined in the Aadhaar Act. In common

parlance, it is understood as information about data, example

whereof was given by Mr. Sibal that the text of a message

exchanged between two persons would be the data itself.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 278 of 567

However, surrounding circumstances like when the message was

sent; from whom and to whom the message was sent; and

location from which the message was sent would include meta

data. As noted above, Mr. Dwivedi had tried to explain it away by

stating that there are three types of meta data, namely, technical,

business and process meta data. According to him, meta data

under the Aadhaar Act refers to only process meta data. In

support, he had referred to Section 2(d) of the Aadhaar Act which

defines ‘authentication record’ to mean the record of the time of

authentication, identity of requesting entity and the response

provided by the Authority. He, thus, submitted that
Regulation 26

would not go beyond
Section 2(d)
. However, aforesaid

explanation that meta data refers to process data only does not

find specific mention. There is, thus, need to amend
Regulation
to restrict it to process meta data, and to exclude other type of

meta data specifically.

Purpose Limitation:

202) As per the petitioners, there is no purpose limitation. Identity

information collected for one purpose under the Act can be

used for any other (new) purpose. Definition of “benefit”

(
Section 2(f)
) and “service” (
Section 2(w)
) and “subsidy” (Section

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 279 of 567

2(x)), to which the personal data collected is supposed to be

applied is not identifiable. It is open to the executive to notify that

any advantage, gift, reward, relief, payment, provision, facility,

utility or any other assistance aid, support, grant subvention, or

appropriation may be made conditional on Aadhaar

Authentication. Moreover, under
Section 57
, the State, a body

corporate or any person can avail authentication facility and

access information under CIDR. This creates an open ended and

unspecified set of laws and contracts for which Aadhaar can be

used and defeats the principle of informed consent at the time of

enrolment and purpose limitation.

203) Respondents controvert the aforesaid submission by arguing that

there is purpose limitation under the Aadhaar Act as purpose of

use of biometric data in the CIDR is limited to authentication for

identification. The Aadhaar holder is made aware of such use of

the Aadhaar card at the time of enrolment. The enrolling agency

is obliged under the Enrolment Regulations to inform the

individual about the manner in which the information shall be

used, the nature of recipients with whom the information is to be

shared during authentication; and the existence of a right to

access information, the procedure for making request for such

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 280 of 567

access and details of the person/ department to whom request

can be made. This information to individual is the basis for his

consent for enrolment.

204) As per the respondents,
Section 57
is not an enabling provision

which allows Aadhaar to be used for purposes other than
Section
, but is a limiting provision. It limits its use by State, Body

Corporate or a person by requiring it to be sanctioned by any law

in force or any contract and making the use subject to the proviso

to
Section 57
. The proviso requires the use of Aadhaar under this

Section to be subject to procedure and obligations under
Section
and Chapter VI of penalties.
Section 8(2)(a)
requires

Requesting Entities (RE) (parties authorized to carry out

authentication under
Section 57
) to obtain the consent of an

individual before collecting her identity information for the

purposes of authentication in such manner as may be specified

by regulations.
Section 8(3)
enables this consent to be informed

consent by requiring that an individual submitting her identity

information for authentication shall be informed of the nature and

the use of the information that may be shared upon

authentication and the alternatives to submission of identity

information to the requesting entity. This aspect is discussed in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 281 of 567

detail at a later stage, as it touches upon privacy aspects as well.

Suffice it is to mention here that we have found some portion of

Section 57
as offending and declared that unconstitutional.

Insofar as
Sections 2(f)
, (w) and (x) are concerned, these

provisions are discussed at a later stage 77. We would like to

mention here that we have read down these provisions. The

aforesaid measure would subserve the purpose limitation as well.

Time Period for Data Retention:

205) We have touched upon this aspect hereinabove. According to

petitioners, the data is allowed to be retained for an

unreasonable long period of time.
Regulation 27
of the

Authentication Regulations requires the UIDAI to retain the

“authentication transaction data” (which includes the meta data)

for a period of 6 months and to archive the same for a period of 5

years thereafter.
Regulation 18(3)
and
20(3)
allow Requesting

entities (RE) and Authentication Service Agencies to retain the

authentication logs for a period of 2 years and then archive them

for 5 years. It is required to be deleted only after 7 years unless

retained by a court. The right of the citizen to erasure of data or

right to be forgotten is severely affected by such regulation. There

is no provision to delete the biometric information in any

77 See paragraphs 320 to 322

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 282 of 567

eventuality once a person is enrolled.

We do not find any reason for archiving the authentication

transaction data for a period of five years. Retention of this data

for a period of six months is more than sufficient after which it

needs to be deleted except when such authentication transaction

data are required to be maintained by a Court or in connection

with any pending dispute. Regulations 26 and 27 shall, therefore,

be amended accordingly.

Data Protection and Security:

206) Petitioners argued that there are not enough safeguards for data

protection and security in the Act.
Section 28
of the Act which

addresses security and confidentiality of information is vague and

fails to lay down any standard of data security or prescribe any

cogent measures which are to be taken to prevent data breaches.

Section 54
empowers UIDAI to make regulations related to

various data management processes, security protocol and other

technology safeguards. The Aadhaar (Data Security)

Regulations, 2016 passed by UIDAI under
Section 54
, vest in the

authority a discretion to specify “an information security policy”

(
Regulation 3
). This leads to excessive delegation. Alternatively, it

has not been subject to parliamentary oversight which

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 283 of 567

Regulations under
Section 54
require. Further, the CIDR central

database, unlike the ASAs and REs (under Authentication

Regulation 22(1)
), are not required to be located in data centres.

The personal data is accessible by private entities such as AUAs

and KUAs and other private entities such as banks, insurance

companies and telecom service providers. There have been

numerous data breaches in the Aadhaar system. These establish

its vulnerability. There are not enough safeguards from data hack

and data leak. The data is being used by private parties to build

comprehensive databases containing information and profiles of

individuals. Thus the project also lacks transparency of data and

its use.

207) The Respondents contend that strong measures for data

protection and security, taken at all stages of data collection,

transfer, storage and use.

After deliberating over respective contentions, we are of the

opinion that the following explanation furnished by the

respondents on various facets ensures data protection and

security to a considerable extent:

(a) CIDR

208)
Regulation 3(i)
& (j) of Aadhaar (Data Security) Regulation 2016

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 284 of 567

enables partitioning of CIDR network into zones based on risk

and trust and other security measures. CIDR being a computer

resource is notified to be a “Protected System” under
Section 70

of the IT Act, 2000 by the Central Government on 11.12.2015.

Anyone trying to unlawfully gain access into this system is liable

to be punished with 10 years imprisonment and fine. The storage

involves end to end encryption, logical partitioning, firewalling and

anonymisation of decrypted biometric data. Breaches of penalty

are made punitive by
Chapter VII of the Act
. Biometric information

is deemed to be an “electronic record”, and “Sensitive personal

data or information” under the
IT Act, 2000
. There are further

guards under The Aadhaar ( Data Security )Regulation, 2016.

(b) Requesting Entities (AUA and KUA)

209) Other identity information is shared with Requesting Entity (AUAs

and KUAs) only for the limited purpose of authentication. The

data is transferred from the RE to the ASA (Authentication

Service Agency) to the CIDR in an encrypted manner through a

leased line circuitry using secure Protocols (
Regulation 9
of the

Authentication Regulations). The storage of data templates is in

safely located servers with no public internet inlet/outlet, and

offline storage of original encrypted data (PID blocks). There are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 285 of 567

safety and security provisions such as audit by Information

Systems Auditor. REs are appointed through agreement. REs can

enter into agreement with sub-AUA or sub-KUA with permission

of the of UIDAI. Whatever identity information is obtained by the

requesting entity is based on a specific consent of the Aadhaar

number holder. The e-KYC data shared with the RE can only be

after prior consent of the Aadhaar holder. Such data cannot be

shared and has to be stored in encrypted form. The biometric

information used is not permitted to be stored only the logs of

authentication transactions are maintained for a short period. Full

identity information is never transmitted back to RE. There is a

statutory bar from sharing Biometric information [
Section 29(1)(a)
/

Section 29(4)
]. The Data centres of ASA, REs and CIDR should

be within the territory of India.

(c) Enrolment Agencies and Registrars

210) The enrolment and Authentication processes are strongly

regulated so that data is secure. The Enrolment agency, which

collects the biometric and demographic of the individuals during

enrolment, is appointed either by UIDAI or by a Registrar [
Section

2(s)
]. The registrar are appointed through MoUs or agreements

for enrolment and are to abide by a code of conduct and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 286 of 567

processes, policies and guidelines issued by the authority. They

are responsible for the process of enrolment. Categories of

persons eligible for appointment are limited by the Regulations.

The agency employees a certified supervisor, an operator and a

verifier under Enrolment and Update Regulations. Registrars,

enrolling agencies are obliged to use the software provided or

authorized by UIDAI for enrolment purpose. The standard

software has security features as specified by Authority. All

equipment used are as per the specification issued by the

authority. The Registrars are prohibited from using the

information collected for any purpose other than uploading the

information to CIDR. Sub-contracting of enrolment function is not

allowed. The Code of Conduct contains specific directions for

following the confidentiality, privacy and security protocols and

submission of periodic reports of enrolment. Not only there are

directions prohibiting manipulation and fraudulent practices but

the Act contains penal provisions for such violations in Chapter

VII of the Regulations. The enrolment agencies are empanelled

by the authority. They are given an enrolling agency code using

which the Registrar can onboard such agency to the CIDR. The

enrolment data is uploaded to the Central Identities Data

Repository (CIDR) certified equipment and software with a digital

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 287 of 567

signature of the registrar/enrolling agency. The data is encrypted

immediately upon capture. The decryption key is with the UIDAI

solely.
Section 2(ze)
of the IT Act, which defines ‘secure systems’

and
Section 2(w)
of the Act, which defines ‘intermediaries’ apply

to the process.

(d) Authentication Service Agency

211) Authentication only becomes available through the Authentication

Service Agency (ASA). They are regulated by the Aadhaar

(Authentication) Regulations, 2016. Their role and responsibilities

are provided by Authentication
Regulation 19
. They are to use

certified devices, equipment, or software are duly registered with

or approved or certified by the Authority/agency. The systems and

operations are audited by information system auditor. The REs

pass the encrypted data to the CIDR through the ASA and the

response (Yes/No authentication or e-KYC information) also

takes the same route back. The server of the ASA has to perform

basic compliance and completeness checks on the authentication

data packet before forwarding it to the CIDR.

(e) Hacking

212) As far as hacking is concerned, the respondents submit that the

authority has involved adequate firewalling and other safety

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 288 of 567

features. The biometric data stored in the CIDR is stored offline.

Only templates are online. So far there has been no incidence of

hacking. However, the authority is conscious of the hackers and it

constantly updates itself to safe guard the data.

It may, however, be mentioned that of late certain reports

have appeared in newspapers to the effect that some people

could hack the website of CIDR, though it is emphatically denied

by the UIDAI. Since there are only newspapers reports to this

effect which appeared after the conclusion of hearing in these

cases and, therefore, parties could not be heard on this aspect,

we leave this aspect of the matter at that with a hope that CIDR

would find out the ways and means to curb any such tendency.

(f) Biometric Solution Providers

213) With respect to foreign companies owning software, Respondents

submit that UIDAI has entered into licensing agreements with

foreign biometric solution providers (BSP) for software. Even

thought the source code of the software are retained by the BSP

as it constitutes their Intellectual property, the data in the server

rooms is secure as the software operates automatically and the

biometric data is stored offline. There is no opportunity available

to BSP to extract data as they have no access to it.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 289 of 567

Substantive, Procedural or Judicial Safeguards:

214) Another grievance of the petitioners is that the Act lacks any

substantive, procedural or judicial safeguards against misuse of

individual data.
Section 23(2)(k)
which allows sharing information

of Aadhaar holders, in such manner as may be specified by

regulations. This means individual’s identity information can be

shared with the government. This may include demographic and

core biometric information, include aspects such as DNA profiles,

handwriting, voice-print etc., (in the future). Subsequent linkage

with various state and non-state actors that interact with such

individual may enable UIDAI to share greater information. The

police can easily gain access to all biometric information, bank

accounts of the individual, all mobile phones, and meta data

associated with any associated linkages, information relating to

all mutual funds, policies etc., information relating to travel by air

or by rail by such person and so on.

215) In other cases of collection of information of this kind under other

laws, there are exhaustive legal procedures. For example,

Section 73
of the Indian Evidence Act, 1872 which allows the

taking of handwriting samples only if necessary “for the purposes

of any (specific ) investigation”, or in order to compare writing or

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 290 of 567

signature that appears in relation to the facts of a particular case.

Section 53
of the CrPC allows medical examination of a person

arrested on a charge of committing an offence if reasonable

grounds exist for believing that an examination of his person will

afford evidence as to the commission of the offence. Similarly

provisions in various other statutes such as of the
Foreign

Exchange Regulation Act, 1973
(Sections 34-48); the
Prevention

of Money-Laundering Act, 2002
(Sections 17-19); the
Narcotic

Drugs and Psychotropic Substances Act, 1985
(Sections 41-42)

and the
Customs Act, 1962
(Chapter 13) which allow for search,

seizure or even arrest, and thereby provide access to personal

information also bear a nexus with a particular crime under

investigation.

216) As per the petitioners, the Investigating Agency can presently

access fingerprints, only limited to cases of citizens who were

arrested on the reasonable basis of having committed a crime, or

were convicted of a crime, as per provisions of the
Identification

of Prisoners Act
. In all such circumstances, not only are there

adequate safeguards- such as permission from the Magistrate

that collection is necessary for the purpose of investigation, but

persons accused of an offence presently can claim protection

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 291 of 567

under
Article 20(3)
, thereby making it incumbent upon the

investigating agency to obtain such information in accordance

with law, as described above. Further, unlike the Aadhaar Act,

present day criminal statutes contain provisions for destruction of

some kinds of core biometric data obtained [
Section 7
of the

Identification of Prisoners Act, 1920]. No such safeguards exist

under the Aadhaar Act.

217) It is also argued that
Section 33(2)
, which permits disclosure of

identity information and authentication records under direction of

an officer not below the rank of Jt. Secretary to Central

Government in the interest of national security, has no provision

for judicial review. The Oversight Committee does not have a

judicial member.

218) Respondents submitted that Section 29 of the Aadhaar Act

provides protection against disclosure of core biometric

information. The biometric information cannot shared with anyone

for any reason whatsoever; or used for any purpose other than

generation of Aadhaar numbers and authentication under this Act.

Section 8
ensure that the during authentication, biometric

information of an individual is only used for submission to the

Central Identities Data Repository.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 292 of 567

219) We are of the view that most of the apprehensions of the

petitioners stand assuaged with the treatment which is given by

us to some of the provisions. Some of these are already

discussed above and some provisions are debated in the next

issue. Summary thereof, however, can be given hereunder:

(a) Authentication records are not to be kept beyond a period

of six months, as stipulated in
Regulation 27(1)
of the

Authentication Regulations. This provision which permits

records to be archived for a period of five years is held to

be bad in law.

(b) Metabase relating to transaction, as provided in
Regulation
of the aforesaid Regulations in the present form, is held

to be impermissible, which needs suitable amendment.

(c) Section 33 of the Aadhaar Act is read down by clarifying

that an individual, whose information is sought to be

released, shall be afforded an opportunity of hearing.

(d) Insofar as
Section 33(2)
of the Act in the present form is

concerned, the same is struck down.

(e) That portion of Section 57 of the Aadhaar Act which

enables body corporate and individual to seek

authentication is held to be unconstitutional.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 293 of 567

(f) We have also impressed upon the respondents, as the

discussion hereinafter would reveal, to bring out a robust

data protection regime in the form of an enactment on the

basis of Justice B.N. Srikrishna (Retd.) Committee Report

with necessary modifications thereto as may be deemed

appropriate.

220) With the removal of the aforesaid provisions from the statute and

the Rules, coupled with the statement of the Authority on affidavit

that there is no record of any transactions carried out by the

individuals which is even known (and, therefore, no question of

the same being retained by the Authority), most of the

apprehensions of the petitioners are taken care of. At the same

time, we may remind ourselves of the judgment in
G.

Sundarrajan v. Union of India & Ors.78
. In that case, the Court

noted the safety and security risk in the setting up of the nuclear

power plant in the backdrop of Fukushima disaster and Bhopal

Gas tragedy. Yet, keeping in view the importance of generation

of nuclear energy, the Court observed that a balance should be

struck between production of nuclear energy which was of

extreme importance for the economic growth, alleviation of

poverty, generation of employment, and the smaller violation to

78 (2013) 6 SCC 620

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 294 of 567

right to life under
Article 21.
It took note of the opinion of experts

committee and observed that ‘adequate safety measure’ have

been taken. It noted huge expenditure of money running into

crores and observed ‘apprehension however legitimate it may be,

cannot override the justification of the project. Nobody on this

earth can predict what would happen in future and to a larger

extent we have to leave it to the destiny. But once the justification

test is satisfied, the apprehension test is bound to fail.

Apprehension is something we anticipate with anxiety or fear, a

fearful anticipation, which may vary from person to person’. The

Court also held that ‘nuclear power plant is being established not

to negate right to life but to protect the right to life guaranteed

under
Article 21
of the Constitution. No doubt, the Court took a

view that this interest of people needed to be respected for their

human dignity which was divinity. However, it was also stressed

that generation of nuclear energy was a nuclear necessity and

the project was for larger public benefit and consequently,

individual interest or smaller public interest must yield. In such a

situation, necessity for ‘adequate care, caution, and monitoring at

every stage’ and ‘constant vigil’ was emphasised. Safety and

security was read into
Article 21.
Acknowledging that

proportionality of risk may not be ‘zero’, regard being had to the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 295 of 567

nature’s unpredictability, the Court ruled that all efforts must be

made to avoid disaster by observing the highest degree of

constant alertness. In the directions of the Court, it was observed

that ‘maintaining safety is an ongoing process not only at the

design level but also during the operation’. In the present case

as well, we have come to the conclusion that Aadhaar Act is a

beneficial legislation which is aimed at empowering millions of

people in this country. The justification of this project has been

taken note of in detail, which the subsequent discussion shall

also demonstrate. In such a scenario only on apprehension, the

project cannot be shelved. At the same time, data protection and

data safety is also to be ensured to avoid even the remote

possibility of data profiling or data leakage.

221) Notwithstanding the statutory provision discussed above, we are

of the view that there is a need for a proper legislative

mechanism for data protection. The Government is not unmindful

of this essential requirement. During the arguments it was stated

by Mr. K.K. Venugopal, learned Attorney General, that an expert

committee heading by Justice B.N. Srikrishna (Retd.) was

constituted which was looking into the matter. The said

Committee has since given its report.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 296 of 567

222) In this behalf, it may be worthwhile to mention that one of the first

comprehensive reports on data protection and informational

privacy was prepared by the Group of Experts 79 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.

223) 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 addresses the

processing of personal data where such data has been collected,

79 “Report of the Group of Experts on Privacy” (16 October, 2012), Government of India, available
at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 297 of 567

disclosed, shared or otherwise processed within the territory of

India. The bill has incorporated provisions and principles from the

Europe’s General Data Protection Regulation (EUGDPR).

224) The Draft Bill replaces 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 aims to create a trust-based relationship

between the two.

225) The Bill largely incorporates 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 has been given a crucial status in the draft

data protection law. Thus, a primary basis for processing of

personal data must be individual consent. This consent is

required to be free, informed, specific, clear and, in an important

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 298 of 567

addition, capable of being withdrawn. The Authority under the Bill

is obligated and empowered to ensure protection of data from

misuse and compromise.

226) Processing of biometric data, classified as ‘Sensitive Personal

Data’ (SPD), by the data fiduciary mandates additional

safeguards (mentioned under Chapter IV of the Bill). For

example, the data fiduciary is required to undertake Data

Protection Impact Assessment under the provisions of the Bill.

The Draft Bill allows processing of biometric data for the exercise

of any function of the State authorised by law for the provision of

any service or benefit to the data principal. Special provisions to

protect sensitive and personal data of children also exist. For

example, Data fiduciaries shall be barred from profiling, tracking,

or behavioural monitoring of, or targeted advertising directed at,

children and undertaking any other processing of personal data

that can cause significant harm to the child.

227) For security of data and protection of breach, the Draft Bill has

separate provisions which require use of methods such as de-

identification and encryption and other steps necessary to protect

the integrity of personal data and to prevent misuse, unauthorised

access to, modification, disclosure or destruction of personal

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 299 of 567

data. The data fiduciary is required to immediately notify the

Authority of any personal data breach relating to any personal

data processed by the data fiduciary where such breach is likely

to cause harm to any data principal. It also incorporates a

provision for Grievance Redressal.

228) The Draft Bill creates several exceptions and exemptions for

processing data by the State. These are situations where rights

and obligations of data principals and data fiduciaries may not

apply in totality. Such situations include national security,

prevention of crime, allocation of resources for human

development, protection of revenue, etc. The committee asserts

that such exceptions have been envisaged in the Puttaswamy

judgement as legitimate interests of the state and satisfy the

proportionality test.

229) The Srikrishna Committee Report and the Draft Data Protection

Bill are the first articulation of a data protection law in our country.

They have incorporated many of the progressive data protection

principles inspired by the EUGDPR. There may be indeed be

scope for further fine tuning of this law through a consultative

process, however, we are not far away from a comprehensive

data protection regime which entrenches informational and data

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 300 of 567

privacy within our laws and legal system. We hope that there

would be a robust statutory regime in place in near future.

230) The aforesaid discussion leads us to hold that the protection that

there is going to be a surveillance state created by the Aadhaar

project is not well founded, and in any case, taken care of by the

diffluence exercise carried out with the striking down certain

offending provisions in their present form.

Privacy:

Whether Aadhaar Act violates right to privacy and is
unconstitutional on this ground?

(This issue is considered in the context of
Section 7
and

Section 8
of the Act.)

231) The petitioners submit that right to privacy and dignity and

individual autonomy have been established by various cases.
In

Gobind v. State of M.P.80
, this Court held:

“the significance of man's spiritual nature, of his feelings
and of his intellect and that only a part of the pain,
pleasure, satisfaction of life can be found in material things
and therefore they must be deemed to have conferred
upon the individual as against the Government, a sphere
where he should be let alone.

xx xx xx

24. Any right to privacy must encompass and protect the
personal intimacies of the home, the family, marriage,
motherhood, procreation and child rearing. This catalogue
approach to the question is obviously not as instructive as
it does not give analytical picture of the distinctive
characteristics of the right of privacy. Perhaps, the only

80 (1975) 2 SCC 148

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 301 of 567

suggestion that can be offered as unifying principle
underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the
concept of ordered liberty.

25. Rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his
personality, and those things stamped with his personality
shall be free from official interference except where a
reasonable basis for intrusion exists. “Liberty against
Government” a phrase coined by Professor Corwin
expresses this idea forcefully. In this sense, many of the
fundamental rights of citizens can be described as
contributing to the right to privacy.

26. As Ely says:

“There is nothing to prevent one from using the word
‘privacy’ to mean the freedom to live one's life without
governmental interference. But the Court obviously does
not so use the term. Nor could it, for such a right is at stake
in every case.”

232) To recapitulate briefly, the judgment of K.S. Puttaswamy has

affirmed the following –

(i) privacy has always been a natural right, and the correct

position has been established by a number of judgments starting

from Gobind. Privacy is a concomitant of the right of the

individual to exercise control over his or her personality. Equally,

privacy is the necessary condition precedent to the enjoyment of

any of the guarantees in Part III. The fundamental right to privacy

would cover at least three aspects—(i) intrusion with an

individual’s physical body, (ii) informational privacy and (iii)

privacy of choice. Further, one aspect of privacy is the right to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 302 of 567

control the dissemination of personal information. Every individual

should have a right to be able to control exercise over his/her own

life and image as portrayed in the world and to control

commercial use of his/her identity.

(ii) The sanctity of privacy lies in its functional relationship with

dignity. Privacy ensures that a human being can lead a life of

dignity by securing the inner recesses of the human personality

from unwanted intrusions. While the legitimate expectation of

privacy may vary from intimate zone to the private zone and from

the private to the public arena, it is important to underscore that

privacy is not lost or surrendered merely because the individual is

in a public place. Privacy is a postulate of dignity itself. Privacy

concerns arise when the State seeks to intrude into the body and

the mind of the citizen.

(iii) Privacy as intrinsic to freedom, liberty and dignity. The right

to privacy is inherent to the liberties guaranteed by Part-III of the

Constitution and privacy is an element of human dignity. The

fundamental right to privacy derives from Part-III of the

Constitution and recognition of this right does not require a

constitutional amendment. Privacy is more than merely a

derivative constitutional right. It is the necessary basis of rights

guaranteed in the text of the Constitution.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 303 of 567

(iv) Privacy has both positive and negative content. The

negative content restrains the State from committing an intrusion

upon the life and personal liberty of a citizen. Its positive content

imposes an obligation on the State to take all necessary

measures to protect the privacy of the individual.

(v) Informational Privacy is a facet of right to privacy. The old

adage that ‘knowledge is power’ has stark implications for the

position of individual where data is ubiquitous, an all-

encompassing presence. Every transaction of an individual user

leaves electronic tracks, without her knowledge. Individually these

information silos may seem inconsequential. In aggregation,

information provides a picture of the beings. The challenges

which big data poses to privacy emanate from both State and

non-State entities.

(vi) Right to privacy cannot be impinged without a just, fair and

reasonable law. It has to fulfil the test of proportionality i.e. (i)

existence of a law (ii) must serve a legitimate State aim and (iii)

proportionate.

233) We have also remarked, in paragraph 85 above, the taxonomy of

privacy, namely, on the basis of ‘harms’, ‘interest’ and

‘aggregation of rights’. We have also discussed the scope of

right to privacy with reference to the cases at hand and the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 304 of 567

circumstances in which such a right can be limited. In the

process, we have also taken note of the passage from the

judgment rendered by Nariman, J. in K.S. Puttaswamy stating the

manner in which law has to be tested when it is challenged on the

ground that it violates the fundamental right to privacy. Keeping

in mind all these considerations and parameters, we proceed to

deal with the argument on right to privacy.

234) It is argued that the Aadhaar project, during the pre-Act period

(2009/10 – July, 2016), violated the Right to Privacy with respect

to personal demographic as well as biometric information

collected, stored and shared as there was no law authorizing

these actions. In a digital society an individual has the right to

protect herself by controlling the dissemination of such personal

information. Compelling an individual to establish her identity by

planting her biometric at multiple points of service violates privacy

involving the person. The seeding of Aadhaar in distinct data

bases enables the content of information about an individual that

is stored in different silos to be aggregated. This enables the

State to build complete profiles of individuals violating privacy

through the convergence of data.

235) It is also contended that the citizen’s right to informational privacy

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 305 of 567

is violated by authentication under the Aadhaar Act inasmuch as

the citizen is compelled to ‘report’ her actions to the State. Even

where a person is availing of a subsidy, benefit or service from

the State under
Section 7
of the Act, mandatory authentication

through the Aadhaar platform (without an option to the citizen to

use an alternative mode of identification) violates the right to

informational privacy. An individual’s rights and entitlements

cannot be made dependent upon an invasion of his or her bodily

integrity and his or her private information which the individual

may not be willing to share with the State. The bargain underlying

section 7
is an unconscionable, unconstitutional bargain.
Section
is against the constitutional morality contained in both Part III as

well the Part IV of the Constitution of India.

236) It was also highlighted that today the fastest growing businesses

are network orchestrators, the likes of Facebook and Uber, which

recreate a network of peers in which participants interact and

share value in creation. The most important assets for these

network orchestrators is information. Although, individuals share

information with these entities, such information is scattered, not

concentrated in a single authority or aggregated. If information,

collected in different silos is aggregated and centralized, it can

afford easy access to a person’s complete profile, including her

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 306 of 567

social groups, proclivities, habits, inclinations, tastes etc. The

entity that holds the key to such information would then be in an

extremely powerful position, especially if such entity is the State.

Since informational privacy is a part of Right to Privacy, it had to

be saved. The peittioners pointed out that the significance of

information being aggregated was noted by Hon’ble Court in K.S.

Puttaswamy as follows:

“300 ...Yet every transaction of an individual user and every
site that she visits, leaves electronic tracks generally
without her knowledge. These electronic tracks contain
powerful means of information which provide knowledge of
the sort of person that the user is and her interests.
Individually, these information silos may seem
inconsequential. In aggregation, they disclose the nature of
the personality: food habits, language, health, hobbies,
sexual preferences, friendships, ways of dress and political
affiliation. In aggregation, information provides a picture of
the being: of things which matter and those that don't, of
things to be disclosed and those best hidden…

xx xx xx

305. Daniel J Solove deals with the problem of
"aggregation". Businesses and governments often
aggregate a variety of information fragments, including
pieces of information which may not be viewed as private
in isolation to create a detailed portrait of personalities and
behaviour of individuals. Yet, it is now a universally
accepted fact that information and data flow are
"increasingly central to social and economic ordering".

Individuals are identified with reference to tax records,
voting eligibility, and government-provided entitlements.
There is what is now described as "'veillant panoptic
assemblage', where data gathered through the ordinary
citizen's veillance practices finds its way to state
surveillance mechanisms, through the corporations that
hold that data.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 307 of 567

237) It was further argued that test of proportionality was not satisfied

as the extent of information collected is not proportionate to the

‘compelling interest of the State’. Various judgments were citied

where the principle of proportionality has been established by this

court.
In
Chairman, All India Railway Recruitment Board v. K

Shyam Kumar
and others81, this Court held as follows:

“37. ...Proportionality requires the court to judge whether
action taken was really needed as well as whether it was
within the range of courses of action which could
reasonably be followed. Proportionality is more concerned
with the aims and intention of the decision-maker and
whether the decision-maker has achieved more or less the
correct balance or equilibrium. The court entrusted with the
task of judicial review has examine whether decision taken
by the authority is proportionate i.e. well balanced and
harmonious, to this extent the court may indulge in a merit
review and if the court finds that the decision is
proportionate, it seldom interferes with the decision taken
and if it finds that the decision is disproportionate i.e. if the
court feels that it is not well balanced or harmonious and
does not stand to reason it may tend to interfere.”

238) Attention was also drawn to the judgment in Modern Dental

College & Research Centre, wherein this Court established the

four-limb test of proportionality. It was argued that Aadhaar failed

to meet the test laid down therein.

239) According to the petitioners, there is no compelling state interest

for State to know the details of the location and time of using

Aadhaar authentication. Likewise, there are various other

81 (2010) 6 SCC 614

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 308 of 567

methods available for identification. Submission was that one of

the objects of the Aadhaar project is to ensure targeted delivery in

the disbursement of government subsidies benefits and services

in India. Identification for this purpose can be carried out by

various other identity documents issued by the government of

India, such as passport, voting card, ration card, driving license,

job card issued by NREGA duly signed by an officer of the State

government, employment certificate by a public authority, birth

certificate, school leaving certificate, PAN card, overseas Indian

citizen card/PIO/OCI of Indian origin card. There is no justification

to impose Aadhaar under as the exclusive means of identification

under
Section 7
, without which a person would be unable to

secure her entitlements. Such mandate would not only infringe

upon the privacy of a person and violate a person’s fundamental

rights, but would also unreasonably deprive a person of her

entitlements on a ground that has little connection with her right

to receive such entitlements.

240) Judgment in the case of
Jordan & Ors v. State82
was also cited

wherein Sachs & O’Regan JJ. concurringly held that continuum

of privacy rights start with the inviolable inner self, move to

the home, and end with the public realm; and that

82 (2002) ZACC 22

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 309 of 567

commitment to dignity invests great value in the inviolability

and worth of the body. Decisional privacy allows individuals to

make decisions about their own body, and is an aspect of

right to self determination. It is underscored by personal

autonomy, which prevents the State from using citizens as

puppets and controlling their body and decisions.

Informational privacy deals with a person’s mind and

comprises of (i) anonymity, (ii) secrecy, and (iii) freedom. It

is premised on the assumption that all information about a

person is in a fundamental way her own, for her to

communicate or retain for herself as she sees fit.

241) It was submitted that privacy rights against both the State and

non-State actors. There is a qualitative difference between right

to privacy against the State and against Non-state actors. Subba

Rao. J’s dissent in Kharak Singh, was relied upon wherein it was

stated that the existence of concentrated and centralized State

power, rather than its actual or potential use that creates the

chilling effect and leads to psychological restraint on the ability of

citizens to think freely. Therefore, individuals have a higher

expectation of privacy from the State. In the vein, it was further

submitted that the State was imposing disproportionate and

unreasonable State compulsion. States do not have the power to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 310 of 567

compel their citizens to do particular acts, except in a

narrow range of defined circumstances.
As sentinels on the

qui vive, Courts are duty bound to protect citizens against

State compulsion, whether in the context of forcibly

undergoing narco-analysis/lie detectors tests or forcibly

undergoing sterilization. Compulsion can be used in limited

circumstances such as punishment for law-breaking, compulsion

in the aid of law enforcement, and compulsion to prevent

potential law-breaking. These include fines, imprisonment,

fingerprint collection for criminals and prisoners. Even in medical

jurisprudence, the case of
Common Cause v. Union of India83

elaborates on the concepts of dignity, bodily integrity and

decisional autonomy. For DNA tests and blood tests to be

conducted a high standard of evidence is required.
Similarly

‘refusal of treatment’ is a constitutionally protected liberty interest

in the United States of America as stated in the case of Cruzan v.

Director, Missouri Dept. of Health84.

242) The petitioners further submitted that although the Aadhaar Act

is ostensibly framed as a voluntary entitlement to establish

one’s identity under
section 3
read with Section 4(3) of the

Aadhaar Act, the actions of the Executive and private entities
83 Writ Petition (Civil) No. 215 of 2005
84 497 US 361 (1990)

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 311 of 567

under
sections 7
and
have made possession of Aadhaar de

facto mandatory. Residents have thus been forced to obtain

an Aadhaar number, for continued access to statutory

entitlements and services. 252 government schemes have

been notified by various Ministries/Departments of the

Central Government under
section 7
(as on 30.11.2017)

requiring Aadhaar as a condition precedent for availing

services, subsidies and benefits including for persons with

disabilities, for SC/STs, and for rehabilitation of Manual

Scavengers. It has also been made mandatory for mobile

services, banking and tax payments, registration of students of

CBSE, amongst other things. It thus pervades every aspect of an

individual’s life. Concomitantly, there is no opt out option in the

Aadhaar Act, which makes consent irrevocable and deprives

individuals the ability to make decisions about their life.

243) As per the petitioners, this kind of mandatory nature of
Section 7

violates
Article 14.
They submit that mandatory authentication

has caused, and continues to cause, exclusion of the most

marginalized sections of society. Proof of possession of an

enrolment number or undergoing Aadhaar authentication is a

mandatory pre-requisite for receiving subsidised food grain

under the
National Food Security Act
. It creates “undue

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 312 of 567

burden” on citizen which is unconstitutional. Successful monthly

authentication is contingent on harmonious working of all

attendant Aadhaar processes and technologies–i.e. correct

Aadhaar-seeding, successful fingerprint recognition, mobile

and wireless connectivity, electricity, functional POS

machines and server capacity–each time. It is also dependant

on age, disability (e.g.leprosy), class of work (e.g. manual

labour), and the inherently probabilistic nature of biometric.

Economic Survey of India 2016 reports that authentication

failures have been as high as 49% in Jharkhand and 37%

in Rajasthan, recognising that “failure to identify genuine

beneficiaries results in exclusion error”.

244) The exclusion is not simply a question of poor

implementation that can be administratively resolved, but

stems from the very design of the Act, i.e. the use of

biometric authentication as the primary method of

identification. Determination of legal entitlements is contingent

on a positive authentication response from the UIDAI.

Biometric technology does not guarantee 100% accuracy and

is fallible, with inevitable false positives and false negatives

that are design flaws of such a probabilistic system,

especially because biometrics also change over time.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 313 of 567

245) Classification caused by the Act lacks rational nexus. The

entitlement of an individual depends upon status, and not

proof of identity. At the point of use, The Biometric

Authentication divides residents into two classes: those who

have and do not have Aadhaar; and those who authenticate

successfully, and those who do not. Given that the

probability of biometric mismatch is greatest for the aged,

disabled, and individuals engaging in manual labour –

amongst the most vulnerable sections of society–the

decision to use periodic biometric authentications has a

direct and disparate effect of violating fundamental rights of

this class. This division bears no rational nexus with the

question of status for receiving benefits. It leads to under-

inclusion, and is thus arbitrary, causing an
Article 14

violation.

246) It is also argued that mandatory nature of
Section 7
violates

Article 21
as well. The Aadhaar Act alters the entire design &

institutional structure through which residents were receiving

entitlements. Mandatory imposition of Aadhaar violates their

rights to choose how to identify themselves to the

government in a reasonable and non-intrusive fashion. On

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 314 of 567

making Aadhaar mandatory, instead of the citizen’s right to

food and a correlative duty on the State to take action to

ensure the proper fulfilment of such rights, the State is

exercising its power to convert the constitutional rights of its

citizens into liabilities.

247) As per the petitioners, having established the infringement of

Article 21
, the invasion is not justified under the principle of

proportionality. The State’s primary justification of eliminating

welfare leakages and ensuring “better targeting” does not

stand up to judicial scrutiny.

First, it has failed to discharge its burden of showing

that the purported leakages were exclusively caused due to

identity fraud, and that those leakages would not exist if

Aadhaar is implemented. The state has not given any empirical

data. Leakages exist due to eligibility frauds, quantity frauds and

identity frauds. Studies filed in Petitioner’s affidavits show that

eligibility and quantity frauds are the substantial cause for

leakages. Assuming that the Aadhaar Act prevents leakages, the

biometric identification system can, at best, only cure leakages

related to identity fraud. The government’s claims of savings

inter alia of Rs. 14,000 crores in the PDS system, due to the

deletion of 2.33 crore ration cards is incorrect, inflated, and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 315 of 567

based on wrong assumptions for the following reasons:

(a) it admittedly does not have estimates of leakages in

PDS, nor has any study been done to see if POS machines

are effective in removing PDS irregularities;

(b) it conflates issue of “bogus /ineligible ration cards”

(eligibility fraud) with identity fraud;

(c) the figure of 2.33 crore includes West Bengal, where

ration cards are issued to each person, as opposed to each

household;

(d) a large number of these 2.33 crore cards were deleted

even before Aadhaar-integration and seeding came into

effect;

(e) the savings figure includes even those eligible

beneficiaries who have been removed from the list due to

failure to link Aadhaar properly; and

(f) it does not value the cost of loss of privacy. Most

importantly, the basis for reaching such savings figure has

not been disclosed.

Similarly, incorrect averments have been made in the

context of LPG savings, using Aadhaar-enabled Direct Benefit

Transfer (‘DBT’) scheme known as PAHAL.

Secondly, it has failed to show how the introduction of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 316 of 567

Aadhaar will stop the losses causes on any of the grounds

above. Aadhaar is susceptible to its own unique forms of mischief

by the vendor.

Thirdly, the State has failed to demonstrate that other,

less invasive ways would be significantly worse at addressing

the problem, especially given recent studies that found a

significant reduction in PDS leakages, due to innovations

devised to work within the PDS system; alternatives such as

food coupons, digitisation of records, doorstep delivery, SMS

alerts, social audits, and toll-free helplines have not been

looked at.

Fourthly, the absence of proportionality is further

established by the fact of systematic exclusion.

248) The respondents refuted, in strongest possible manner, all the

aforesaid submissions in the following manner:

(i) No reasonable expectation of privacy

At the outset it was argued that Right to Privacy exists when

there is a reasonable expectation of privacy. K.S. Puttaswamy

judgment, US case law, UK case laws and the European cases

on
Article 8
of ECHR were referred to to determine the contours

of reasonable expectation of privacy. Submission was that the Act

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 317 of 567

operates in the public and relational sphere and not in the core,

private or personal sphere of residents. It involves minimal

identity information for effective authentication. The purpose is

limited to authentication for identification.
Section 29
of the

Aadhaar Act, 2016 provides protection against disclosure of

identity information without the prior consent of the ANH

concerned. Sharing is intended only for authentication purposes.

It was also submitted that there is no reasonable expectation of

privacy with respect to identity information collected under the

Aadhaar Act for the purposes of authentication and therefore

Article 21
is not attracted.

249) The respondents point out that four types of information collected

for providing Aadhaar (i). Mandatory demographic information

comprising name, date of birth, address and gender [
Section 2(k)

read with
Regulation 4(1)
of the Aadhaar (Enrolment and Update)

Regulations, 2016]; (ii) Optional demographic information

[
Section 2(k)
read with
Regulation 4(2)
of the Aadhaar (Enrolment

and Update) Regulations, 2016]. (iii) Non-core biometric

information comprising photograph. (iv) Core biometric

information comprising finger print and iris scan.

250) Demographic information, both mandatory and optional, and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 318 of 567

photographs does not raise a reasonable expectation of privacy

under
Article 21
unless under special circumstances such as

juveniles in conflict of law or a rape victim’s identity. Today, all

global ID cards contain photographs for identification alongwith

address, date of birth, gender etc. The demographic information

is readily provided by individuals globally for disclosing identity

while relating with others and while seeking benefits whether

provided by government or by private entities, be it registration for

citizenship, elections, passports, marriage or enrolment in

educational institutions. Email ids and phone numbers are also

available in public domain, For example in telephone directories.

Aadhaar Act only uses demographic information which are not

sensitive and where no reasonable expectation of privacy exists -

name, date of birth, address, gender, mobile number and e mail

address.
Section 2(k)
specifically provides that Regulations

cannot include race, religion, caste, tribe, ethnicity, language,

records of entitlement, income or medical history. Thus, sensitive

information specifically stand excluded.

251) Face Photographs for the purpose of identification are not

covered by a reasonable expectation of privacy. Barring

unpublished intimate photographs and photographs pertaining to

confidential situations there will be no zone of privacy with

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 319 of 567

respect to normal facial photographs meant for identification.

Face-photographs are given by people for driving license,

passport, voter id, school admissions, examination admit cards,

employment cards, enrolment in professions and even for entry in

courts. In our daily lives we recognize each other by face which

stands exposed to all, all the time. The face photograph by itself

reveals no information.

252) There is no reasonable expectation of privacy with respect to

fingerprint and iris scan as they are not dealing with the intimate

or private sphere of the individual but are used solely for

authentication. Iris scan is nothing but a photograph of the eye,

taken in the same manner as a face photograph. Fingerprints and

iris scans are not capable of revealing any personal information

about the individual except for serving the purpose of

identification. Fingerprints are largely used in biometric

attendance, laptops and mobiles. Even when a privacy right

exists on a fingerprint, it will be weak. Finger print and iris scan

have been considered to be the most accurate and non-invasive

mode of identifying an individual. They are taken for passports,

visa and registration by the State and also used in mobile

phones, laptops, lockers etc for private use. Biometrics are being

used for unique identification in e passports by 120 countries.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 320 of 567

(ii) Least intrusive and strict scrutiny tests do not apply in the

proportionality test.

Learned Attorney General argued that the “least intrusive

test” is not applicable while asserting the test of proportionality.

He relied on various U.S. Supreme Court judgments which

explicitly rejected the test and the case of Modern Dental College

& Research Centre which does not use the least intrusive

measure test while undertaking the proportionality test.

Mr.Dwivedi contends that the least intrusive means of

achieving the state object, while carrying out the proportionality

test, has been rejected by Indian courts in a catena of decisions

as it involves a value judgment or second guessing of the

Legislation. Such a test violates the separation of powers

between the legislature and the judiciary. Even assuming that the

‘least intrusive method’ test applies, the exercise of determining

the least intrusive method of identification is a technical exercise

and cannot be undertaken in the court of law. Moreover, the

Petitioners, who have furnished smartcards as an alternative,

have not established that smartcards are less intrusive than the

Aadhaar card authentication process.

The argument of applying the ‘Strict Scrutiny Test’ to test

the Constitutionality of the Aadhaar Act by the Petitioners was

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 321 of 567

flawed. Strict scrutiny test is a test conceptualised in the United

States, only applied to ‘super suspect legislations’. This

compulsion arises because the scope of reasonable restrictions

not having been specified specifically in the U.S. Constitution.

That leaves the scrutiny of the Legislations by the courts based

on the due process clause in the U.S. Constitution. Such a test

does not have applicability in India. In Ashoka Kumar Thakur

(2008) 6 SCC 1, the court referred to the test of strict scrutiny,

narrow tailoring and compelling interest and observed that these

principles cannot be applied directly to India as affirmative action

is Constitutionally supported.

(iii) Act satisfies Proportionality Test

Ld. Attorney General submitted that the legitimate state

interest that the Aadhaar Act fulfils are prevention of leakages and

dissipation of subsidies and social welfare benefits that are

covered under Section 7 of the Aadhaar Act. He also submits that

the larger public/state interest is to be decided by the State and

cannot be second guessed by the Judiciary. The state had

rejected the idea of ‘smart cards’ and other alternative models

after due deliberations.

The learned Attorney General cited various reports

highlighting leakages, wastage, high costs and inefficiencies in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 322 of 567

the Public Distribution System, MGNREGA scheme and fuel

subsidy. He cited the Thirteenth Finance Commission Report

2010-2015 which stated that creation of a biometric-based unique

identity for all residents in the country has potential to

address need of the government to ensure that only eligible

persons are provided subsidies and that all eligible persons

are covered. He also cited the Economic Surveys of 2014-15 and

2015-16 both of which dilated upon the benefits of Aadhaar. The

2015-16 Survey says that the use of Aadhaar has significantly

reduced leakages in LPG and MGNREGA with limited

exclusion of the poor by linking households' LPG customer

numbers with Aadhaar numbers to eliminate ‘ghosts’ and

duplicate households from beneficiary rolls. The United

Nations, in its report titled ‘Leaving No One Behind: the

imperative of inclusive development’, praised India’s decision of

launching Aadhaar as it will be a step forward in ensuring

inclusion of all people especially the poorest and the most

marginalized.

This court in the case of
PUCL v. Union of India85
has

approved the recommendations of the High-powered committee

headed by Justice D.P Wadhwa, which recommended linking

85 (2011) 14 SCC 331

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 323 of 567

of Aadhaar with PDS and encouraged State Governments to

adopt the same. The court also lauded the efforts of State

government for using biometric identification.

He also referred to

the case of
Binoy Viswam v. Union of India86
where the economic

rationale for and benefits of Aadhaar was discussed and

validated.

Mr. Dwivedi has argued that 3% of GDP amounting to

trillions of rupees is allocated by Governments towards subsidies,

scholarships, pensions, education, food and other welfare

programmes. But approximately half of if does not reach the

intended beneficiaries. Aadhaar is necessary for fixing this

problem as there is no other identification document which is

widely and commonly possessed by the residents of the country

and most of the identity documents do not enjoy the quality of

portability. Moreover, Aadhaar lends assurance and accuracy on

account of existence of fake, bogus and ghost cards, vide the

process of de-duplication and authentication. De-duplication is

ensured by the three sub systems are :- (i) demographic de-

duplication (ii) multi-ABIS multi-modal biometric de-duplication (iii)

manual adjudication. Biometric system provides high accuracy of

over 99.86 %. The mixed biometric have been adopted only to

86 (2017) 7 SCC 59

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 324 of 567

enhance the accuracy and to reduce the errors which may arise

on account of some residents either not having biometrics or not

having some particular biometric.

(iv) Act empowers various facets of right to life under
Article 21

The Ld. Attorney General submitted that
Section 7
of the Act

is traceable to
Article 21
of the Constitution. Right to life is not a

mere animal existence but the right to live with human dignity

which includes the right to food, the right to shelter, right to

employment, right to medical care, etc. Fulfilling these rights will

justify the minimal invasion of the right to privacy of the citizens.

The counsel for the respondent also referred to the case of

G. Sundarrajan v. Union of India87
in which the petitioner therein

challenged the violation of their Right to the Life due to the risk

posed by the Kudanakulam Nuclear Plant. The court struck a

balance between production of nuclear energy, which was of

extreme importance for the economic growth, alleviation of

poverty, generation of employment , and the violation of right to

life and dignity under
Article 21
posed by the threat of a nuclear

disaster. The court observed that adequate safety measure –

both in design and operation - had been taken hence the violation

of right to life was justified.

87 (2013) 6 SCC 670

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 325 of 567

253) The argument of ‘illusory consent’ was refuted with the

submission that
Section 7
of the Act which mandatorily requires

Aadhaar for receipt of benefit, service or subsidy linked to the

Consolidated Fund of India, does not violate any Fundamental

Rights. It involves a balancing of two Fundamental Rights: the

Right to Privacy and the positive obligation of the State to ensure

right to food, shelter and employment under
Article 21
of the

Constitution. Aadhaar enables furtherance of
Article 21
by

eliminating leakages and ensuring that no deserving individual is

denied her/his entitlement. The object of the Act i.e. the

efficient, transparent and targeted delivery of subsidies,

benefits and services to genuine beneficiaries is in,

furtherance of various facets of
Article 21
of the poor people

of India and in furtherance of the Directive Principles of

State Policy inter alia Articles 38,39, 41, 43, 47 and 48.

254) It was further argued that
Section 7
is not a restriction at all and it

does not require any surrender of Fundamental Rights. It is

merely a regulatory procedure to receipt of subsidy, benefit or

service.
Section 7
purports to enliven the Fundamental Right

under
Article 21
, and
Article 14.
To achieve the goal of enlivening

Fundamental Rights of the poor and the deprived and to prevent

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 326 of 567

siphoning off the benefits, service or subsidy, it becomes

necessary to require compliance with the condition of undergoing

authentication.

255) Section 7 of the Aadhaar Act protects right to human dignity

recognized by
Article 21
of the Constitution. Aadhaar is used as

means of authentication for availing services, benefits and

subsidies. Welfare schemes funded from the consolidated fund of

India such as PDS, scholarship, mid day meals, LPG subsidies,

free education ensure that the Right to Life and Dignity of citizens

are being enforced, which includes Justice (Social, Political and

Economic). It also eliminates inequality with a view to ameliorate

the poor, Dalits and other downtrodden classes and sections of

the society.

256) In response to the argument that Fundamental Right to Privacy

cannot be waived, the Mr.Dwivedi submits that Section 7 of the

Aadhaar Act does not involve any issue of waiver. When an

individual undergoes any authentication to establish his identity to

receive benefits, services or subsidy, he does so to enliven his

Fundamental Right to life and personal liberty under
Article 21.

When an individual makes a choice to enter into a relational

sphere then his choice as to mode of identification would

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 327 of 567

automatically get restricted on account of the autonomy of the

individuals or institution with whom he wishes to relate. This is

more so where the individual seeks employment, service ,

subsidy or benefits. Moreover, Aadhaar is of a Universal nature,

unlike any other identification card which are not portable. They

generally have a localized value and limited purpose.

257) In response to the arguments of the petitioners that Aadhaar

reduces individuals to numbers, it was submitted that the

Aadhaar number is absolutely necessary for authentication and it

is solely used for that purpose. It was argued that the petitioner

have conflated the concepts of identity and identification.

Authentication is merely an identification process and does not

alter the identity of an individual. Further Aadhaar number is a

randomly generated number and bears no relation to the

attributes of individuals. It is similar to an examiner allotting codes

to examinees for administrative convenience.

258) It was also argued that the State has an obligation to enlivening

right to food, right to shelter etc envisaged under
Article 21
and

for this purpose they may encroach upon the right of privacy of

the beneficiaries. The state requires to strike a fair balance

between the right of privacy and right to life of beneficiaries. An

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 328 of 567

example furnished by the counsel for this is the Prohibition Of

Employment as Manual Scavengers and their Rehabilitation Act,

2013, which restricts a scavenger’s right to practice any

profession, occupation, trade or business under
Article 19(g)
is

order to enliven
Article 21
and
17.
The counsel also gave the

example of the practice of dwarftossing, which was banned in

France. The law was challenged on ground that it interferes with

the economic right of one practicing it. The challenge was

negatived on the ground that permitting such a practice even

though voluntary will be degrading of human dignity by Human

Right Committee. Certain choices are restricted /prohibited by the

Constitution itself (Articles 17,18, 23 and 24).
Article 23
abolishes

forced labour so it prohibits even those choosing to indulge in

forced labour from doing so. The aforesaid actually result in

enhancement of the Fundamental Right. The person is

emancipated from a social condition which is below human

dignity. Similarly
Section 7
of the Act involves an identification for

the purpose of enhancing human dignity.

259) In response to the argument of Aadhaar causing exclusion, the

learned Attorney General responded by saying that if

authentication fails, despite more than one attempt, then the

possession of Aadhaar number can be proved otherwise i.e. by

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 329 of 567

producing the Aadhaar card. And those who do not have Aadhaar

number can make an application for enrolment and produce the

enrolment id number).

260) Before we proceed to analyse the respective submissions, it has

also to be kept in mind that all matters pertaining to an individual

do not qualify as being an inherent part of right to privacy. Only

those matters over which there would be a reasonable

expectation of privacy are protected by
Article 21.
This can be

discerned from the reading of Paras 297 to 307 of the judgment,

relevant portions whereof have already been quoted above.

261) We may also clarify that the arguments of privacy are examined

in the context of
Sections 7
and
and the provisions related

thereto under the Aadhaar Act. Validity of the other provisions of

the Aadhaar Act, which is questioned in these proceedings, is

dealt with separately. As per Section 7 of the Aadhaar Act in case

an individual wants to avail any subsidy benefit or services, she is

required to produce the Aadhaar number and, therefore, it

virtually becomes compulsory for such a person. To that extent

the petitioners may be right in submitting that even if enrolment in

Aadhaar is voluntary, it assumes the character of compulsory

enrolment for those who want to avail the benefits under Section

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 330 of 567

7. Likewise, authentication, as mentioned in
Section 8
, also

becomes imperative. The relevant question, therefore, is as to

whether invasion into this privacy meets the triple requirements or

right to privacy.

(i) Requirement of law : The Parliament has now passed

Aadhaar Act, 2016
. Therefore, law on the subject in the form of a

statute very much governs the field and, thus, first requirement

stands satisfied. We may point out at this stage that insofar as

period from 2009 (when the Aadhaar scheme was launched with

the creation of Authority vide notification No. A-43011/02/2009-

Admin. I dated January 28, 2009 till the date Aadhaar Act came

into force i.e. March 26, 2016, it is the argument of the petitioners

that insofar as this period is concerned, it is not backed by any

law and, therefore, notification dated January 28, 2009 should be

struck down on this ground itself and all acts done including

enrolment under the Aadhaar scheme from 2009 to 2016 should

be invalidated. This aspect we propose to deal at a later stage.

At this juncture, we are looking into the vires of Aadhaar Act. In

that context, the first requirement stands fulfilled.

(ii) Whether Aadhaar Act serves legitimate State aim?

‘Introduction’ to the said Act gives the reasons for passing

that Act and the ‘Statement of Objects and Reasons’ mentions

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 331 of 567

the objectives sought to be achieved with the enactment of the

Aadhaar Act. ‘Introduction’ reads as under:

“The Unique Identification Authority of India was
established by a resolution of the Government of
India in 2009. It was meant primarily to lay down
policies and to implement the Unique Identification
Scheme, by which residents of India were to be
provided unique identity number. This number would
serve as proof of identity and could be used for
identification of beneficiaries for transfer of benefits,
subsidies, services and other purposes.

Later on, it was felt that the process of enrolment,
authentication, security, confidentiality and use of
Aadhaar related information be made statutory so as
to facilitate the use of Aadhaar number for delivery of
various benefits, subsidies and services, the
expenditures of which were incurred from or receipts
therefrom formed part of the Consolidated Fund of
India.

The Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Bill, 2016
inter alia, provides for establishment of Unique
Identification Authority of India, issuance of Aadhaar
number to individuals, maintenance and updating of
information in the Central Identities Data Repository,
issues pertaining to security, privacy and
confidentiality of information as well as offences and
penalties for contravention of relevant statutory
provisions.”

In the Statement of Objects and Reasons, it is inter alia

mentioned that though number of social benefits schemes have

been floated by the Government, the failure to establish identity of

an individual has proved to be a major hindrance for successful

implementation of those programmes as it was becoming difficult

to ensure that subsidies, benefits and services reach the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 332 of 567

unintended beneficiaries in the absence of a credible system to

authenticate identity of beneficiaries. The Statement of Objects

and Reasons also discloses that over a period of time, the use of

Aadhaar number has been increased manifold and, therefore, it is

also necessary to take measures relating to ensuring security of

the information provided by the individuals while enrolling for

Aadhaar card. Having these parameters in mind, Para 5 of the

Statement of Objects and Reasons enumerates the objectives

which the Aadhaar Act seeks to achieve. It reads as under:

“5. The Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Bill, 2016
inter alia, seeks to provide for—

(a) issue of Aadhaar numbers to individuals on
providing his demographic and biometric information
to the Unique Identification Authority of India;

(b) requiring Aadhaar numbers for identifying an
individual for delivery of benefits, subsidies, and
services the expenditure is incurred from or the
receipt therefrom forms part of the Consolidated Fund
of India;

(c) authentication of the Aadhaar number of an
Aadhaar number holder in relation to his demographic
and biometric information;

(d) establishment of the Unique Identification
Authority of India consisting of a Chairperson, two
Members and a Member-Secretary to perform
functions in pursuance of the objectives above;

(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in
such manner as may be specified by regulations;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 333 of 567

(f) measures pertaining to security, privacy and
confidentiality of information in possession or control
of the Authority including information stored in the
Central Identities Data Repository; and

(g) offences and penalties for contravention of
relevant statutory provisions.”

262) After taking into consideration the Statement of Objects and

Reasons, a two Judge Bench of this Court in Binoy Viswam v.

Union of India & Ors.88, recapitulated the objectives of Aadhaar in

the following manner:

“125. By making use of the technology, a method is sought
to be devised, in the form of Aadhaar, whereby identity of a
person is ascertained in a flawless manner without giving
any leeway to any individual to resort to dubious practices
of showing multiple identities or fictitious identities. That is
why it is given the nomenclature “unique identity”. It is
aimed at securing advantages on different levels some of
which are described, in brief, below:

125.1. In the first instance, as a welfare and democratic
State, it becomes the duty of any responsible Government
to come out with welfare schemes for the upliftment of
poverty-stricken and marginalised sections of the society.

This is even the ethos of Indian Constitution which casts a
duty on the State, in the form of “directive principles of
State policy”, to take adequate and effective steps for
betterment of such underprivileged classes. State is bound
to take adequate measures to provide education, health
care, employment and even cultural opportunities and
social standing to these deprived and underprivileged
classes. It is not that Government has not taken steps in
this direction from time to time. At the same time, however,
harsh reality is that benefits of these schemes have not
reached those persons for whom that are actually meant.

125.1.1. India has achieved significant economic growth
since Independence. In particular, rapid economic growth
has been achieved in the last 25 years, after the country

88 (2017) 7 SCC 59

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 334 of 567

adopted the policy of liberalisation and entered the era of,
what is known as, globalisation. Economic growth in the
last decade has been phenomenal and for many years, the
Indian economy grew at highest rate in the world. At the
same time, it is also a fact that in spite of significant
political and economic success which has proved to be
sound and sustainable, the benefits thereof have not
percolated down to the poor and the poorest. In fact, such
benefits are reaped primarily by rich and upper middle
classes, resulting into widening the gap between the rich
and the poor.

125.1.2. Jean Dreze and Amartya Sen pithily narrate the
position as under [An Uncertain Glory : India and its
Contradictions] :

“Since India's recent record of fast economic growth
is often celebrated, with good reason, it is extremely
important to point to the fact that the societal reach of
economic progress in India has been remarkably
limited. It is not only that the income distribution has
been getting more unequal in recent years (a
characteristic that India shares with China), but also
that the rapid rise in real wages in China from which
the working classes have benefited greatly is not
matched at all by India's relatively stagnant real
wages. No less importantly, the public revenue
generated by rapid economic growth has not been
used to expand the social and physical infrastructure
in a determined and well-planned way (in this India is
left far behind by China). There is also a continued
lack of essential social services (from schooling and
health care to the provision of safe water and
drainage) for a huge part of the population. As we will
presently discuss, while India has been overtaking
other countries in the progress of its real income, it
has been overtaken in terms of social indicators by
many of these countries, even within the region of
South Asia itself (we go into this question more fully in
Chapter 3, ‘India in Comparative Perspective’).

To point to just one contrast, even though India
has significantly caught up with China in terms of
GDP growth, its progress has been very much slower
than China's in indicators such as longevity, literacy,
child undernourishment and maternal mortality. In
South Asia itself, the much poorer economy of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 335 of 567

Bangladesh has caught up with and overtaken India
in terms of many social indicators (including life
expectancy, immunisation of children, infant mortality,
child undernourishment and girls' schooling). Even
Nepal has been catching up, to the extent that it now
has many social indicators similar to India's, in spite
of its per capita GDP being just about one third.
Whereas twenty years ago India generally had the
second best social indicators among the six South
Asian countries (India, Pakistan, Bangladesh, Sri
Lanka, Nepal and Bhutan), it now looks second worst
(ahead only of problem-ridden Pakistan). India has
been climbing up the ladder of per capita income
while slipping down the slope of social indicators.”

125.1.3. It is in this context that not only sustainable
development is needed which takes care of integrating
growth and development, thereby ensuring that the benefit
of economic growth is reaped by every citizen of this
country, it also becomes the duty of the Government in a
welfare State to come out with various welfare schemes
which not only take care of immediate needs of the
deprived class but also ensure that adequate opportunities
are provided to such persons to enable them to make their
lives better, economically as well as socially. As mentioned
above, various welfare schemes are, in fact, devised and
floated from time to time by the Government, keeping aside
substantial amount of money earmarked for spending on
socially and economically backward classes. However, for
various reasons including corruption, actual benefit does
not reach those who are supposed to receive such
benefits. One of the main reasons is failure to identify these
persons for lack of means by which identity could be
established of such genuine needy class. Resultantly, lots
of ghosts and duplicate beneficiaries are able to take
undue and impermissible benefits. A former Prime Minister
of this country [ Late Shri Rajiv Gandhi] has gone on record
to say that out of one rupee spent by the Government for
welfare of the downtrodden, only 15 paisa thereof actually
reaches those persons for whom it is meant. It cannot be
doubted that with UID/Aadhaar much of the malaise in this
field can be taken care of.

263) It may be highlighted at this stage that the petitioners are making

their claim on the basis of dignity as a facet of right to privacy. On

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 336 of 567

the other hand, Section 7 of the Aadhaar Act is aimed at offering

subsidies, benefits or services to the marginalised section of the

society for whom such welfare schemes have been formulated

from time to time. That also becomes an aspect of social justice,

which is the obligation of the State stipulated in Para IV of the

Constitution. The rationale behind
Section 7
lies in ensuring

targeted delivery of services, benefits and subsidies which are

funded from the Consolidated Fund of India. In discharge of its

solemn Constitutional obligation to enliven the Fundamental

Rights of life and personal liberty (
Article 21
) to ensure Justice,

Social, Political and Economic and to eliminate inequality (Article

14) with a view to ameliorate the lot of the poor and the Dalits, the

Central Government has launched several welfare schemes.

Some such schemes are PDS, scholarships, mid day meals, LPG

subsidies, etc. These schemes involve 3% percentage of the

GDP and involve a huge amount of public money. Right to

receive these benefits, from the point of view of those who

deserve the same, has now attained the status of fundamental

right based on the same concept of human dignity, which the

petitioners seek to bank upon. The Constitution does not exist for

a few or minority of the people of India, but “We the people”. The

goals set out in the Preamble of the Constitution do not

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 337 of 567

contemplate statism and do not seek to preserve justice, liberty,

equality an fraternity for those who have the means and

opportunity to ensure the exercise of inalienable rights for

themselves. These goals are predominantly or at least equally

geared to “secure to all its citizens”, especially, to the

downtrodden, poor and exploited, justice, liberty, equality and “to

promote” fraternity assuring dignity. Interestingly, the State has

come forward in recognising the rights of deprived section of the

society to receive such benefits on the premise that it is their

fundamental right to claim such benefits. It is acknowledged by

the respondents that there is a paradigm shift in addressing the

problem of security and eradicating extreme poverty and hunger.

The shift is from the welfare approach to a right based approach.

As a consequence, right of everyone to adequate food no more

remains based on Directive Principles of State Policy (Art 47),

though the said principles remain a source of inspiration. This

entitlement has turned into a Constitutional fundamental right.

This Constitutional obligation is reinforced by obligations under

International Convention. The Universal Declaration of Human

Rights (Preamble,
Article 22

& 23
) and International Covenant on

Economic, Social and Cultural Rights to which India is a

signatory, also casts responsibilities on all State parties to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 338 of 567

recognize the right of everyone to adequate food. Eradicating

extreme poverty and hunger is one of the goals under the

Millennium Development Goals of the United Nations. The

Parliament enacted the
National Security Food Act, 2013
to

address the issue of food security at the household level. The

scheme of the Act designs a targeted public distribution system

for providing food grains to those below BPL. The object is to

ensure to the people adequate food at affordable prices so that

people may live a life with dignity. The reforms contemplated

under
Section 12
of the Act include, application of information and

communication technology tools with end to end computerization

to ensure transparency and to prevent diversion, and leveraging

Aadhaar for unique biometric identification of entitled

beneficiaries.
The Act
imposes obligations on the Central

Government, State Government and local authorities vide

Chapter VIII, IX and X.
Section 32
contemplates other welfare

schemes. It provides for nutritional standards in Schedule II and

the undertaking of further steps to progressively realize the

objectives specified in Schedule III.

264) At this juncture, we would also like to mention that historic

judgment of this Court in
His Holiness Kesavananda Bharati

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 339 of 567

Sripadagalvaru v. State of Kerala & Anr.89
emphasised on the

attainment of socio-economic rights and its interplay with

fundamental rights. Following passages from the opinion

rendered by Khanna, J. need a specific mention:

“1477. I may also refer to another passage on p. 99 of
Grammar of Politics by Harold Laski:

“The state, therefore, which seeks to survive must
continually transform itself to the demands of men
who have an equal claim upon that common welfare
which is its ideal purpose to promote.

We are concerned here, not with the defence of
anarchy, but with the conditions of its avoidance. Men
must learn to subordinate their self-interest to the
common welfare. The privileges of some must give
way before the rights of all. Indeed, it may be urged
that the interest of the few is in fact the attainment of
those rights, since in no other environment is stability
to be assured.”

1478. A modern State has to usher in and deal with large
schemes having social and economic content. It has to
undertake the challenging task of what has been called
social engineering, the essential aim of which is the
eradication of the poverty, uplift of the downtrodden, the
raising of the standards of the vast mass of people and the
narrowing of the gulf between the rich and the poor. As
occasions arise quite often when the individual rights clash
with the larger interests of the society, the State acquires
the power to subordinate the individual rights to the larger
interests of society as a step towards social justice. As
observed by Roscoe Pound on p. 434 of Volume I of
Jurisprudence under the heading “Limitations on the Use of
Property”:

“Today the law is imposing social limitations —
limitations regarded as involved in social life. It is
endeavouring to delimit the individual interest better
with respect to social interests and to confine the

89 (1973) 4 SCC 225

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 340 of 567

legal right or liberty or privilege to the bounds of the
interest so delimited.”

To quote the words of Friedmann in Legal Theory:

“But modern democracy looks upon the right to
property as one conditioned by social responsibility
by the needs of society, by the ‘balancing of interests’
which looms so large in modern jurisprudence, and
not as pre-ordained and untouchable private right.”
(Fifth Edition, p. 406).”

265) It would also be worthwhile to mark, in continuity with the

aforesaid thought, what Dwivedi, J. emphasised.

“...The Nation stands to-day at the cross-roads of history
and exchanging the time-honoured place of the phrase,
may I say that the Directive Principles of State Policy
should not be permitted to become “a mere rope of
sand”. If the State fails to create conditions in which the
fundamental freedoms could be enjoyed by all, the
freedom of the few will be at the mercy of the many and
then all freedoms will vanish. In order, therefore, to
preserve their freedom, the privileged few must part with
a portion of it.”

266) By no stretch of imagination, therefore, it can be said that there is

no defined State aim in legislating Aadhaar Act. We may place

on record that even the petitioners did not seriously question the

purpose bona fides of the legislature in enacting this law. In a

welfare State, where measures are taken to ameliorate the

sufferings of the downtrodden, the aim of the Act is to ensure that

these benefits actually reach the populace for whom they are

meant. This is naturally a legitimate State aim.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 341 of 567

(iii) Whether Aadhaar Act meets the test of proportionality?

267) The concept and contours of doctrine of proportionality have

already been discussed in detail. We have also indicated the

approach that we need to adopt while examining the issue of

proportionality. This discussion bring out that following four sub-

components of proportionality need to be satisfied:

(a) A measure restricting a right must have a legitimate goal

(legitimate goal stage).

(b) It must be a suitable means of furthering this goal (suitability

or rationale connection stage).

(c) There must not be any less restrictive but equally effective

alternative (necessity stage).

(d) The measure must not have a disproportionate impact on

the right holder (balancing stage).

268) We now proceed to examine as to whether these components

meet the required parameters in the instant case.

(a) Legitimate Goal Stage: At this stage, the exercise which

needs to be undertaken is to see that the State has legitimate

goal in restricting the right. It is also to be seen that such a goal

is of sufficient importance justifying overriding a constitutional

right of freedom. Further, it impairs freedom as little as possible.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 342 of 567

269) In our preceding discussion, we have already pointed out above

that Aadhaar Act serves the legitimate state aim. That, in fact,

provides answer to this component as well. Some additions to

the said discussion is as follows:

It is a matter of common knowledge that various welfare

schemes for marginalised section of the society have been

floated by the successive governments from time to time in last

few decades. These include giving ration at reasonable cost

through ration shops (keeping in view Right to Food), according

certain benefits to those who are below poverty line with the

issuance of BPL Cards, LPG connections and LPG cylinders at

minimal costs, old age and other kinds of pensions to deserving

persons, scholarships, employment to unemployed under

Mahatma Gandhi National Rural Employment Guarantee Act,
(MGNREGA) Scheme. There is an emergence of socio-

economic rights, not only in India but in many other countries

world-wide. There is, thus, recognisation of civil and political

rights on the one hand and emergence of socio-economic rights

on the other hand. The boundaries between civil and political

rights review as well as socio-economic rights review are rapidly

crumbling. This rights jurisprudence created in India is a telling

example.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 343 of 567

270) This Court has developed a reputation as both a protector of

Human Rights and an engine of economic and social reforms.
In

People’s Union for
Civil Liberties (PUCL) v. Union of India90
, the

Court’s treatment of Right to Food as a fundamental right has

been seen as victory for India’s impoverished population. The

Court had passed orders enforcing the Government to take steps

to ensure the effective implementation of the Food Distribution

Schemes created by the Famine Code. Series of interim orders

were passed aimed at bringing immediate relief to the drought

affected individuals. The benefits of the schemes were converted

into legal entitlements by orders dated November 28, 2001

passed in the said case. Amongst other things, the Court ordered

government to complete the identification of people who fell into

the groups targeted for food distribution, issue cards to allow

these people to collect the grain and distribute the grain to the

relevant centres. The order also provided for governmental

inspections to ensure fair quality grain. In this and subsequent

orders, the court set the requirements on reporting,

accountability, monitoring, transparency and dissemination of

court orders aimed at ensuring that its orders are followed.

271) The purpose behind these orders was to ensure that the
90 (2001) 5 Scale 303

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 344 of 567

deserving beneficiaries of the scheme are correctly identified and

are able to receive the benefits under the said scheme, which is

their entitlement. The orders also aimed at ensuring ‘good

governance’ by bringing accountability and transparency in the

distribution system with the pious aim in mind, namely, benefits

actually reached those who are rural, poor and starving.

272) Again, in People’s Union for
Civil Liberties (PUCL
) case, orders

dated January 20, 2010 were passed by the Division Bench of

this Court directing the Government of Delhi to respond to the

extreme weather conditions ‘by setting up more shelters and

protecting homeless people from the cold’. The assurance was

extracted from the then Additional Solicitor General on behalf of

the Government that affected people would be provided with

shelter as a matter of priority and that arrangement should be

made for this within a day.

273) In the context of Right to Education, this Court in
State of Bihar &

Ors. v. Project Uchcha Vidya, Sikshak Sangh & Ors.91
passed

orders on January 3, 2006 thereby directing that a committee be

appointed to investigate departures from the State of Bihar’s

policy concerning the establishment of ‘Project Schools’ aimed at

improving its poor education record. The Court appointed a

91 Civil Appeal No. 6626-6675 of 2001

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 345 of 567

committee to investigate the matter. The Court’s order included

details as to the composition and functions of the committee,

guidelines as to what would constitute irregularities in the

implementation of the policy and an expectation that the State of

Bihar would take remedial action if the committee found any

irregularities. The Court’s approach to affirmative action in

education is also instructive.

274) In
Ashoka Thakur v. Union of India92
, the Court upheld the Ninety-

Third Amendment to the Constitution, which allows for certain

educational institutions to put in place special admissions rules in

order to advance India’s ‘socially or educationally backward

classes of citizens or for the Scheduled Castes or the Scheduled

Tribes’.93 The Court held that people who are wealthier and

better educated (the ‘creamy layer’) should be excluded from the

27 per cent quota for ‘Other Backward Classes’ (OBC). This

step was needed to ensure that benefits reached those people

living in desperate poverty. In addition, the inclusion of particular

groups in the OBC category had to be reviewed every five years.

275) In
Paschim Banga Ket Mazdoor Samity v. State of West Bengal94
,

the Court found that
Article 21
encompasses a right to adequate
92 Writ Petition (Civil) No. 265 of 2006, judgment delivered on April 10, 2008.
93 The challenge made in the case related to ‘Other Backward Classes’ rather than the Scheduled
Castes or Tribes.

94 (1996) 4 SCC 37

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 346 of 567

medical facilities or health care. It also interpreted other

fundamental rights in light of directive principles. Likewise, in

Mohini Jain v. State of Kerala & Ors.95, the Court held that the

right to equality before the law in
Article 14
includes a right to

education.
In the subsequent case,
Unnikrishnan v. State of

Andhra Pradesh96
, the Court clarified its findings in Mohini Jain,

stating that
Article 14
gave rise to a right to primary education.

Following the cases on education, in 1997 the Indian government

proposed a constitutional Amendment recognising education for

children under 14 as a fundamental right. This Amendment was

passed in 2002 as
Article 21A.
One of the Court’s earliest cases

dealing with the role of the directive principles in constitutional

interpretation is arguably also its most celebrated judgment.

Some commentators see the decision in
Olga Tellis & Ors. v.

Bombay Municipal Corporation & Ors.97
as a recognition of

enforceable right to shelter.

276) The purpose of citing aforesaid judgments is to highlight that this

Court expanded the scope of
Articles 14
and
of the

Constitution by recognising various socio-economic rights of the

poor and marginalised section of the society and, in the process,

95 (1992) 3 SCC 666
96 (1993) 1 SCC 645
97 1985 SCR Supl. (2) 51

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 347 of 567

transforming the constitutional jurisprudence by putting a positive

obligation on the State to fulfill its duty as per the Charter of

Directive Principles of the State Policy, contained in Part IV of the

Constitution. It is to be kept in mind that while acknowledging

that economic considerations would play a role in determining the

full content of the right to life, the Court also held that right

included the protection of human dignity and all that is attached to

it, ‘namely, the bare necessities of life such as adequate nutrition,

clothing and shelter and facilities for reading, writing and

expressing oneself in diverse forms’ (See
Francis Coralie Mullin

v. The Administrator, Union Territory of Delhi & Ors.
98). It is, thus,

of some significance to remark that it is this Court which has been

repeatedly insisting that benefits to reach the most deserving and

should not get frittered mid-way. We are of the opinion that

purpose of Aadhaar Act, as captured in the Statement of Objects

and Reasons and sought to be implemented by Section 7 of the

Aadhaar Act, is to achieve the stated objectives. This Court is

convinced by its conscience that the Act is aimed at a proper

purpose, which is of sufficient importance.

(b) Suitability or rationale connection stage:

277) We are also of the opinion that the measures which are

98 (1981) 2 SCR 516

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 348 of 567

enumerated and been taken as per the provisions of
Section 7

read with Section 5 of the Aadhaar Act are rationally connected

with the fulfillment of the objectives contained in the Aadhaar Act.

It may be mentioned that the scheme for enrolling under the

Aadhaar Act and obtaining the Aadhaar number is optional and

voluntary. It is given the nomenclature of unique identity. A

person with Aadhaar number gets an identity. No doubt, there

are many other modes by which a person can be identified.

However, certain categories of persons, particularly those living in

abject poverty and those who are illiterate will not be in a position

to get other modes of identity like Pan Card, Passport etc. That

apart giving unique identity of each resident of the country is a

special feature of this scheme, more so, when it comes with the

feature stated above, namely, no person can have more than one

Aadhaar number; Aadhaar number given to a particular person

cannot be reassigned again to any individual even if that is

cancelled and there is hardly any possibility to have fake identity.

278) As pointed out above, enrolling for Aadhaar is not the serious

concern of the petitioners. It is only the process of authentication

and other related issues which bothers the petitioners which shall

be considered at the appropriate stage. At this point of time, we

are discussing the issue as to whether the limitation on the rights

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 349 of 567

of the individuals is rationally connected to the fulfillment of the

purpose contained in the Aadhaar Act. Here,
Section 5
talks of

special measures for issuance of Aadhaar number to certain

categories of persons. It gives identity to those persons who

otherwise may not have any such identity. In that manner, it

recognises them as residents of this nation and in that form gives

them their ‘dignity’.

279)
Section 7
, which provides for necessity of authentication for

receipt of certain subsidies, benefits and services has a definite

purpose and this authentication is to achieve the objectives for

which Aadhaar Act is enacted, namely, to ensure that such

subsidies, benefits and services reach only the intended

beneficiaries. We have seen rampant corruption at various levels

in implementation of benevolent and welfare schemes meant for

different classes of persons. It has resulted in depriving the

actual beneficiaries to receive those subsidies, benefits and

services which get frittered away though on papers, it is shown

that they are received by the persons for whom they are meant.

There have been cases of duplicate and bogus ration cards, BPL

cards, LPG connections etc. Some persons with multiple

identities getting those benefits manifold. Aadhaar scheme has

been successful, to a great extent, in curbing the aforesaid

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 350 of 567

malpractices. By providing that the benefits for various welfare

schemes shall be given to those who possess Aadhaar number

and after undergoing the authentication as provided in Section 8

of the Aadhaar Act, the purpose is to ensure that only rightful

persons receive these benefits. Non-action is not costly. It’s the

affirmative action which costs the Government. And that money

comes from exchequer. So, it becomes the duty of the

Government to ensure that it goes to deserving persons.

Therefore, second component also stands fulfilled.

(c) Necessity Stage:

280) Insofar as third component is concerned, most of it stands

answered while in the discussion that has ensued in respect of

component No. 1 and 2. The manner in which malpractices have

been committed in the past leaves us to hold that apart from the

system of unique identity in Aadhaar and authentication of the

real beneficiaries, there is no alternative measure with lesser

degree of limitation which can achieve the same purpose. In fact,

on repeated query by this Court, even the petitioners could not

suggest any such method.

(d) Balancing Stage:

281) With this, we now advert to the most important component of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 351 of 567

proportionality i.e. balancing between importance of achieving the

proper purpose and the social importance of preventing the

limitation on the constitutional right.

282) Argument of the petitioners is that Aadhaar project creates the

architect of surveillance state and society, which is antithetical to

the principles of democracy. It is premised on the basis that the

Aadhaar project enables the State to profile citizens, track their

movements, assess their habits and silently influence their

behaviour throughout their lives. It may stifle dissent and

influence political decision making. It is also argued that

aggregation, storage and use of such stored information is

violative of fundamental right to privacy, dignity and individual

autonomy. Informational privacy is expected as part of right to

privacy.
The Act
allows data aggregation as well. Such an Act is

unconstitutional as there is violation of a fundamental rights but

there is absence of procedural safeguards to protect data in the

Act. It is also argued that extent of information collected with the

use of Aadhaar, specially by the methodology of authentication, is

not proportionate to the ‘compelling interest of the State’ and

there are various other methods available for identification. It is,

thus, disproportionate and unreasonable state compulsion.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 352 of 567

283) The respondents, on the other hand, have argued that there

cannot be any reasonable expectation of privacy inasmuch as the

Aadhaar Act operates in the public and relationally sphere and

not in the core, private or personal sphere of the residents.

Moreover, it involves minimal identity information for effective

authentication which stands the test of reasonableness.
The Act

is, thus, least intrusive and strict scrutiny test does not apply in

the proportionality test. It is also the case of the respondents that

the Aadhaar Act does not allow aggregation at all and, therefore,

all the apprehension are ill-founded and have no basis. It is also

submitted that the Aadhaar Act is, in fact, the facilitator in

empowering various facets of right to life under
Article 21
and

thereby ensures that unprivileged class is also able to live with

human dignity.

284) Before undertaking this exercise of balancing, we would like to

point out that we are not convinced with the argument of the

respondents that there cannot be any reasonable expectation of

privacy. No doubt, the information which is gathered by the

UIDAI (whether biometric or demographic) is parted with by the

individuals to other agencies/body corporates etc. in many other

kinds of transactions as well, as pointed out by the respondents.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 353 of 567

However, the matter is to be looked into from the angle that this

information is collected and stored by the State or instrumentality

of the State. Therefore, it becomes important to find out as to

whether it meets the test of proportionality, and satisfies the

condition that the measure must not have disproportionate impact

on the right-holder (balancing stage). However, at the same time,

the fact that such information about individuals is in public domain

may become a relevant factor in undertaking the exercise of

balancing.

285) We have already traced the objectives with which the Aadhaar

Act has been enacted. No doubt, there is a right to privacy, which

is now entrenched in fundamental rights. On the other hand, we

are also concerned with the rights of those persons whose dignity

is sought to be ensured by giving them the facilities which are

necessary to live as dignified life. Therefore, balancing has to be

done at two levels:

(i) Whether, ‘legitimate state interest’ ensures ‘reasonable

tailoring’? There is a minimal intrusion into the privacy and the

law is narrowly framed to achieve the objective.
Here the Act
is to

be tested on the ground that whether it is found on a balancing

test that the social or public interest and the reasonableness of

the restrictions outweigh the particular aspect of privacy, as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 354 of 567

claimed by the petitioners. This is the test we have applied in the

instant case.

(ii) There needs to be balancing of two competing fundamental

rights, right to privacy on the one hand and right to food, shelter

and employment on the other hand. Axiomatically both the rights

are founded on human dignity. At the same time, in the given

context, two facets are in conflict with each other. The question

here would be, when a person seeks to get the benefits of welfare

schemes to which she is entitled to as a part of right to live life

with dignity, whether her sacrifice to the right to privacy, is so

invasive that it creates imbalance?

286) In a way, both the aforesaid questions have some overlapping

inasmuch as even while finding answer to the second question, it

will have to be determined as to whether there is a least intrusion

into the privacy of a person while ensuring that the individual gets

the benefits under the welfare schemes.

287) The respondents seemed to be right when they argue that all

matters pertaining to an individual do not qualify as being an

inherent part of right to privacy. Only those which concern

matters over which there can be a reasonable expectation of

privacy would be protected by
Article 21.
In this behalf, we may

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 355 of 567

recapitulate the discussion on some significant aspects in

Puttaswamy:

Privacy postulates the reservation of a private space,

described as the right to be let alone. The integrity of the body

and the sanctity of the mind can exist on the foundation of the

individual’s ‘right to preserve a private space in which the human

personality can develop’ and this involves the ability to make

choices. In this sense privacy is a postulate of human dignity

itself. The inviolable nature of the human personality is

manifested in the ability to make decisions on matters intimate to

human life. The autonomy of the individual is associated ‘over

matters which can be kept private. These are concerns over

which there is a legitimate expectation of privacy’. Thoughts and

behavioral patterns which are intimate to an individual are entitled

to a zone of privacy where one is free of social expectations. In

that zone of privacy an individual is not judged by others. The

judgment refers to the expert group report and identifies nine

privacy principles pertaining to notice, choice and consent,

collection limitation, purpose limitation, access and correction,

non disclosure of information, security of data, openness or

proportionality as to the scale, scope and sensitivity to the data

collected, and accountability. At the same time, privacy is a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 356 of 567

subset of liberty. All liberties may not be exercised in privacy. It

lies across the spectrum of protected freedoms. Further, the

notion of reasonable expectation of privacy has both subjective

and objective elements. At a subjective level it means ‘an

individual desires to be left alone’. On an objective plain privacy

is defined by those Constitutional values which shape the content

of the protected zone where the individual ‘ought to be left alone’.

Further, the notion of reasonable expectation of privacy ensures

that while on the one hand, the individual has a protected zone of

privacy, yet on the other ‘the exercise of individual choices is

subject the right of others to lead orderly lives’. The extent of the

zone of privacy would, therefore, depend upon both the

subjective expectation and the objective principle which defines a

reasonable expectation.

It is pertinent to point out that while dealing with

informational privacy, the judgment notes that privacy concerns

are seriously an issue in the age of information. It also notes the

data mining processes together with knowledge discovery, and

the age of big data. The court finds that data regulation and

individual privacy raises complex issues requiring delicate

balances to be drawn between the legitimate concerns of the

State and individual interest in the protection of privacy, and in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 357 of 567

this sphere, data protection assumes significance. Data such as

medical information would be a category to which a reasonable

expectation of privacy attaches. There may be other data which

falls outside the reasonable expectation paradigm. Data

protection regimes seek to protect the autonomy of the individual.

This is a complex exercise involving careful balancing. In this

balancing process, following parameters are to be kept in mind:

(i) The judgment also holds that the legitimate expectation of

privacy may vary from the intimate zone to the private zone and

from the private to the public arenas. However, ‘the privacy is not

lost or surrendered merely because the individual is in a public

space’.

(ii) One of the chief concerns is that ‘while the web is a source

of lawful activity – both personal and commercial, concerns of

National security intervene since the seamless structure of the

web can be exploited by terrorist to wreak havoc and destruction

on civilized societies.’ Noting an article of Richard A. Posner,

which says ‘privacy is the terrorist’s best friend..’ It is observed

that this formulation indicates that State has legitimate interest

when it monitors the web to secure the Nation.

(iii) Apart from National security, State may have justifiable

reasons for the collection and storage of data as where it

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 358 of 567

embarks upon programs to provide benefits to impoverished and

marginalized sections of society and for ensuring that scarce

public resources are not dissipated and diverted to non-eligible

recipients. Digital platforms are a vital tool of ensuring good

governance in a social welfare State and technology is a powerful

enabler.

288) In the first instance, therefore, it is to be seen as to whether the

petitioners claim on the information supplied while authentication

to be protected is based on reasonable expectation.

289) ‘Reasonable Expectation’ involves two aspects. First, the

individual or individuals claiming a right to privacy must establish

that their claim involves a concern about some harm likely to be

inflicted upon them on account of the alleged act. This concern

‘should be real and not imaginary or speculative’. Secondly, ‘the

concern should not be flimsy or trivial’. It should be a reasonable

concern. It has to be borne in mind that the concept of

‘reasonable expectation’ has its genesis in the US case laws. UK

judgments adopted the test of reasonable expectation from the

US jurisprudence. The ECHR and ECJ judgments reveal a little

divergence with regard to right of privacy. The ECHR in general

adopts the approach that ‘a person’s reasonable expectation as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 359 of 567

to privacy may be significant, although, not necessarily

conclusive factor’. This perhaps explains the apparent conflict as

regards finger prints.

290) In the leading case Katz v. US99 Reasonable Expectation was

stated to embrace two distinct questions. The first was whether

the individual, by his conduct has exhibited an actual (subjective

expectation of privacy), and the second, whether the subjective

expectation is one that the society is prepared to recognize as

reasonable. This was also followed in Smith v. Marlyand100.

291) In the judgment of Court of Appeal in R. Wood v.

Commissioner101, the appellant complained against taking and

retention of his photograph in Central London in the context of a

meeting by the police force to enable identification at a later time

in the event of eruption of disorder and commission of offence.

The concept of reasonable expectation was examined after

surveying a series of judgments which sought to consider

violation of
Article 8
of the ECHR. The following pertinent

aspects emerge:

(i) Whether information related to private or public matter?

(ii) Whether the material obtained was envisaged for a limited

99 389 U.S. 347
100442 US 735
101(2010) 1 WLR 123

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 360 of 567

use or was likely to be made available to general public?

(iii) Private life was a broad term covering physical and

psychological integrity of a person.

(iv) Storing of data relating to private life of an individual

interferes with
Article 8.
However, in determining whether

information retained involves any private life aspect would have to

be determined with due regard to the specific context.

(v)
Article 8
, however protean, should not be so construed

widely that its claims become unreal and unreasonable. Firstly,

the threat to individuals personal autonomy must attain a certain

level of seriousness. Secondly, the claimant must enjoy on the

facts a reasonable expectation of privacy. Thirdly, the breadth of

Article 8(1)
may in many instances be greatly curtailed by scope

of justifications available to the State.

(vi) Reasonable expectation of privacy is a broad concept which

takes into account all the circumstances of the case. They

include attributes of the claimants, the nature of the activity in

which the claimant was engaged, the place at which it was

happening, the nature and purpose of the intrusion, the absence

(or presence) of consent, the effect on the claimant and the

purpose for which information is taken.

292) Therefore, when a claim of privacy seeks inclusion in
Article 21
of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 361 of 567

the Constitution of India, the Court needs to apply the reasonable

expectation of privacy test. It should, inter alia, see:

(i) What is the context in which a privacy claim is set up?

(ii) Does the claim relate to private or family life, or a

confidential relationship?

(iii) Is the claim a serious one or is it trivial?

(iv) Is the disclosure likely to result in any serious or significant

injury and the nature and extent of disclosure?

(v) Is disclosure relates to personal and sensitive information of

an identified person?

(vi) Does disclosure relate to information already disclosed

publicly? If so, its implication?

293) Under the Aadhaar Act Architecture, four types of information is to

be given at the time of enrolment:

(i) Mandatory demographic information comprising name, date

of birth, address and gender (
Section 2(k)
read with
Regulation

4(1)
of the Aadhaar (Enrolment and Update) Regulations, 2016).

(ii) Optional demographic information (
Section 2(k)
read with

Regulation 4(2)
of the Aadhaar (Enrolment and Update)

Regulations, 2016).

(iii) Non core biometric information comprising photograph.

(iv) Core biometric information comprising finger print and iris

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 362 of 567

scan.

294) Insofar as demographic information is concerned, it is required by

the provisions of many other enactments as well like Companies

Act, Special Marriage Act, Central Motor Vehicle Rules,

Registration of Electoral Rules, The Citizenship Rules, The

Passport Act and even Supreme Court Rules.

295) As regards core biometric information which comprises finger

prints, iris scan, for the purpose of enrolling in Aadhaar scheme,

we have already held earlier that it is minimal information

required for enrolment. This information becomes essential for

authentication use in a public sphere and in relational context.

296) It may also be mentioned that with the advent of science and

technology, finger print and iris scan have been considered to be

the most accurate and non invasive mode of identifying an

individual. It is for this reason that these are taken also for driving

licenses, passports, visa as well as at the time of registration of

documents by the State. These are also used in mobile phones,

laptops, lockers etc. for private use. International Civil Aviation

Organisation (ICAO) has recommended use of biometric

passports. Many civilized countries with robust democratic

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 363 of 567

regime have also introduced biometric based identity cards.

Therefore, collection of information in the four different categories

mentioned above may not be unreasonable. However, as stated

earlier as well, the issue is not of taking the aforesaid information

for the purpose of enrolling in Aadhaar and for authentication. It

is the storage and retention of this data, whenever authentication

takes place, about which the concerns are raised by the

petitioners. The fears expressed by the petitioners are that with

the storage and retention of such data, profile of the persons can

be created which is susceptible to misuse.

297) This aspect has already been dealt with earlier and apprehension

of the petitioners are taken care of. To recapitulate, at the time of

enrolment, the data collected is minimal and there is no data

collection in respect of religion, caste, tribe, language of records

of entitlement income or medical history of the applicant at the

time of Aadhaar enrolment. Full care is taken that even the

minimal data collected at the time of enrolment does not remain

with the enrolment agency and immediately gets transmitted to

CIDR. Even at the time of authentication, the only exercise which

is undertaken by the Authority is to see that the finger prints

and/or iris scan of the concerned person sent for authentication

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 364 of 567

match with the one which is in the system of Authority.

298) Let us advert to the second facet of balancing, namely, balancing

of two fundamental rights. As already pointed out above, the

Aadhaar Act truly seeks to secure to the poor and deprived

persons an opportunity to live their life and exercise their liberty.

By ensuring targeted delivery through digital identification, it not

only provides them a nationally recognized identity but also

attempts to ensure the delivery of benefits, service and subsidies

with the aid of public exchequer/Consolidated Fund of India.

National Security Food Act, 2013
passed by the Parliament seeks

to address the issue of food, security at the household level. The

scheme of that Act is aimed at providing food grains to those

belonging to BPL categories.
Like the MGNREGA Act, 2005

takes care of employment.
The MGNREGA Act
has been

enacted for the enhancement, livelihood, security of the

households in rural areas of the country. It guarantees at least

100 days of wage employment in every financial year to at least

one able member of every household in the rural area on assets

creating public work programme.
Sections 3
and
of the

MGNREGA Act contain this guarantee. The minimum facilities to

be provided are set out by
Section 5
read with Schedule II.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 365 of 567

Section 22
provides for funding pattern and
Section 23
provides

for transparency and accountability.
This Act
is another instance

of a rights based approach and it enlivens the Fundamental Right

to life and personal liberty of Below Poverty Line people in rural

areas.

299) We may mention here that Mr. Dwivedi had pointed out not only

India but several other countries including western nations which

have read socio-economic rights into human dignity and right to

life. Hungary and South Africa have gone to the extent of making

express provisions in their Constitutions.

The Federal Constitution Court of Germany in a decision

dated February 09, 2010 while deciding the question whether the

amount of standard benefit aid is compatible with the Basic Law

held that:

“The Fundamental Right to the guarantee of a subsistence
minimum is in line with human dignity emerges from
Article
1.1
of the Basic Law in conjunction with
Article 20.1
of the
Basic Law…
Article 1.1
of the Basic Law established this
claim. The principle of the social welfare State contained in

Article 20.1
of the Basic Law, in turn grants to the
Legislature the mandate to ensure a subsistence minimum
for all that is in line with human dignity”.

It is further held that:

“if a person does not have the material means to guarantee
an existence that is in line with human dignity because he
or she is unable to obtain it either out of his or her gainful
employment, or from own property or by benefits from third
parties, the State is obliged within its mandate to protect

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 366 of 567

human dignity and to ensure, in the implementation of its
social welfare state mandate, that the material
prerequisites for this are at the disposal of the person in
need of assistance.”

Similarly, in a latter judgment dated July 18, 2012 while

deciding whether the amount of the cash benefit provided for in

the Asylum Seekers Benefits Act was constitutional it reiterated

that:

“the direct constitutional benefit claim to the guarantee of a
dignified minimum existence does only cover those means
that are absolutely necessary to maintain a dignified life. It
guarantees the entire minimum existence as a
comprehensive fundamental rights guarantee, that
encompasses both humans’ physical existence, that is
food, clothing, household items, housing, heating, hygiene,
and health, and guarantees the possibility maintain
interpersonal relationships and a minimal degree of
participation in social, cultural and political life, since a
human as a person necessarily exists in a social context..”

300) The Constitutional Court of South Africa in Government of the

Republic of South Africa & Ors. v. Grootboom102 held that:

“...these rights need to be considered in the context of the
socio-economic rights enshrined in the Constitution. They
entrench the right to access to land, to adequate housing
and to health care, food, water and social security..”

301) In 1995, Hungary’s Constitutional Court ruled that the right to

social security as contained in Article 70/E of the Constitution

obligated the State to secure a minimum livelihood through all of

the welfare benefits necessary for the realization of the right to
102(2000) ZACC 19

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 367 of 567

human dignity.

302) Even in Italy, the Courts have emphasized on the right to social

security.

303) In Budina v. Russia103, the European Court of Human Rights has

recognized, in principle, that inadequate benefits could fall under

Article 3
of the European Convention on Human Rights (ECHR)

on the right to be free from inhuman and degrading treatment.

304) In 1996, the Swiss Federal Court ruled that three Czechs illegally

residing in Switzerland are entitled to social benefit in order to

have a minimal level of subsistence for a life in dignity to prevent

a situation where people “are reduced to beggars, a condition

unworthy of being called human. It held:

“...The federal constitution does not (though the 1995 draft
new constitution is now different) explicitly provide for a
fundamental right to a subsistence guarantee. One can
however also derive unwritten constitutional right from it. A
guarantee of freedoms not mentioned in the constitution by
unwritten constitutional law was assumed by the exercise
of other freedoms (mentioned in the constitution), or
otherwise evidently indispensable components of the
democratic constitutional order of the Federation...”

“...The guaranteeing of elementary human needs like food,
clothing and shelter is the condition for human existence
and development as such. It is at the same time an
indispensable component of a constitutional, democratic
polity.”

103 App. No. 45603/05 decided on 18.06.2009

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 368 of 567

305) Nelson Mandela in his speech at Trafalgar Square in London in

2005 said:

“...Massive poverty and obscene inequality are such
terrible scourges of our times – times in which the world
boasts breathtaking advances in science, technology,
industry and wealth accumulation – that they have to rank
alongside slavery and apartheid as social evils...And
overcoming poverty is not a gesture of charity. It is an act
of justice. It is the protection of a fundamental human right,
the right to dignity and a decent life. While poverty
persists, there is no true freedom.”

306) Following passages by James Griffin in his book on “Human

Rights” are worth noting :

“10.1 THE HISTORICAL GROWTH OF RIGHTS:

Contrary to widespread belief, welfare rights are not a
twentieth-century innovation, but are among the first
human rights ever to be claimed. When in the twelfth and
thirteenth centuries our modern conception of a right first
appeared, one of the earliest examples offered was the
right of those in dire need to receive aid from those in
surplus. This right was used to articulate the attractive
view of property prevalent in the medieval Church. God
has given all things to us in common, but as goods will not
be cared for and usefully developed unless assigned to
particular individuals, we creatures have instituted systems
of property. In these systems, however, an owner is no
more than a custodian. We all thus have a right, if we
should fall into great need, to receive necessary goods or,
failing that, to take them from those in surplus.

One finds, every occasionally, what seem to be human
rights to welfare asserted in the Enlightenment, for
example, by John Locke, Tom Paine, and William Cobbett.
Following the Enlightenment, right to welfare have often
appeared in national constitutions; for example, the French
constitutions of the 1790s, the Prussian Civil Code (1794),
the Constitutions of Sweden (1809), Norway (1814), The
Netherlands (1814), Denmark (1849), and, skipping to the
twentieth century, the Soviet Union (1936)-though it is not

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 369 of 567

always clear that the drafters of these various documents
thought of these fundamental civil rights as also human
rights. By the end of the nineteenth century, political
theorists were beginning to make a case that welfare rights
are basic in much the sense that Civil and political rights
are. But it was Franklin Roosevelt who did most to bring
welfare rights into public life. The Atlantic Charter (1941),
signed by Roosevelt and Churchill but in this respect
primarily Roosevelt’s initiative, declared that in addition to
the classical civil and political freedoms here were also
freedoms from want and fear. In his State of the Union
message of 1944, Roosevelt averred :

We have come to a clear realization of the fact that true
individual freedom cannot exist without economic security
and independence. ‘Necessitous men are not free men’…

In our day these economic truths have become accepted
as self evident. We have accepted, so to speak, a second
Bill of Rights…
Among these are : The right to a useful and remunerative
job…. The right to earn enough to provide adequate food
and clothing and recreation…
The United Nations committee charged with drafting the
Universal Declaration of Human Rights (1948), chaired by
Eleanor Roosevelt, included most of the now standard
welfare rights; rights to social security, to work, to rest and
leisure, to medical care, to education, and ‘to enjoy the arts
and to share in scientific advancements and its benefits’.
The Universal Declaration is a good example of how
extensive-some would say lavish-proposed welfare rights
have become.

...If human rights are protections of a form of life that is
autonomous and free, they should protect life as well as
that form of it. But if they protect life, must they not also
ensure the wherewithal to keep body and soul together-
that is, some minimum material provision? And as mere
subsistence-that is, keeping body and soul together-is too
meager to ensure normative agency, must not human
rights guarantee also whatever leisure and education and
access to the thought of others that are also necessary to
being a normative agent?

That is the heart of the case. It appeals to our picture of
human agency and argues that both life and certain
supporting goods are integral to it. Life and certain

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 370 of 567

supporting goods are necessary conditions of being
autonomous and free. Many philosophers employ this
necessary – condition argument to establish a human right
to welfare-or, at least, to establish the right’s being as basic
as any other rights.

I too want to invoke the necessary-conditions arguments; I
should only want to strengthen it. It is now common to say
that liberty rights and welfare rights are ‘indivisible’. But
that, also, is too weak. It asserts that one cannot enjoy the
benefits of liberty rights without enjoying the benefits of
welfare rights, and vice versa. But something stronger still
may be said. There are forms of welfare that are
empirically necessary conditions of a person’s being
autonomous and free, but there are also forms that are
logically necessary-part of what we mean in saying that a
person has these rights. The value in which human rights
are grounded is the value attaching to normative agency.
The norm arising from this value, of course, prohibits
persons from attacking another’s autonomy and liberty.
But it prohibits more. The value concerned is being a
normative agent, a self-creator, made in god’s image….
The value resides not simply in one’s having the
undeveloped, unused capacities for autonomy and liberty
but also in exercising them-not just in being able to be
autonomous but also in actually being so. The norm
associated with this more complex value would address
other ways of failing to be an agent. It would require
protecting another person from losing agency, at least if
one can do this without great cost to oneself; it would
require helping to restore another’s agency if it has already
been lost, say through giving mobility to the crippled or
guidance to the blind, again with the same proviso. All of
this is involved simply in having a right to autonomy or to
liberty. Welfare claims are already part of the content of
these rights. What, then, should we think of the common
division of basic rights into ‘classical’ liberty rights and
welfare rights? Into which of these two classes does the
right to autonomy or to liberty go? Into which of the two
classes do the difficult, apparently borderline cases go,
such as rights to life, to property, to the pursuit of
happiness, to security of person, and to privacy? The
sensible response would be to drop the distinction. What is
more, a right to welfare is a human right.

36. Amartya Sen in his book “Development as Freedom”
says:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 371 of 567

Development requires the removal of major sources
of unfreedom: poverty as well as tyranny, poor economic
opportunities as well as systematic social deprivation,
neglect of public facilities as well as intolerance or
overactivity of repressive states. Despite unprecedented
increases in overall opulence, the contemporary world
denies elementary freedoms to vast numbers-perhaps
even the majority-of people. Sometimes the lack of
substantive freedoms relates directly to economic poverty,
which robs people of the freedom to satisfy hunger, or to
achieve sufficient nutrition, or to obtain remedies for
treatable illnesses, or the opportunity to be adequately
clothed or sheltered, or to enjoy clean water or sanitary
facilities. In other cases, the unfreedom links closely to the
lack of public facilities and social care, such as the
absence of epidemiological programs, or of organized
arrangements for health care or educational facilities, or of
effective institutions for the maintenance of local peace and
order. In still other cases, the violation of freedom results
directly from a denial of political and civil liberties by
authoritarian regimes and from imposed restrictions on the
freedom to participate in the social, political and economic
life of the community.”

307) In the aforesaid backdrop, this Court is called upon to find out

whether Aadhaar Act strikes a fair balance between the two

rights. In this context, we have to examine the importance of

achieving the proper purpose and the social importance of

preventing the limitation on the constitutional rights. Insofar as

importance of achieving the proper purpose is concerned, that

has already been highlighted above. To reiterate some of the

important features, it is to be borne in mind that the State is using

Aadhaar as an enabler for providing deserving section of the

society their right to food, right to livelihood, right to receive

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 372 of 567

pension and other social assistance benefits like scholarships

etc. thereby bringing their right to life to fruition. This necessity of

Aadhaar has arisen in order to ensure that such benefits are

given to only genuine beneficiaries.
The Act
aims at efficient,

transparent and targeted delivery of subsidies, benefits and

services. In the process, it wants to achieve the objective of

checking the corrupt practices at various levels of distribution

system which deprive genuine persons from receiving these

benefits. There have been reports relating to leakages in PDS as

well as in fuel subsidies and also in working of MGNREGA

scheme. Mr. Venugopal, learned Attorney General has given the

following details about these reports:

(I) Reports relating to leakages in PDS

Several studies initiated by the Government as well
as the World Bank and Planning Commission revealed that
food grains did not reach the intended beneficiaries and
that there was large scale leakages due to the failure to
establish identity:

(a) The Comptroller and Auditor General of India in its
Audit Report No. 3 of 2000 in its overview for the Audit
Report observed that the Public Distribution Scheme
suffered from serious targeting problems. 1.93 Crore
bogus ration cards were found to be in circulation in 13
States and a significant portion of the subsidized food-

grains and other essential commodities did not reach the
beneficiaries due to their diversion in the open market.

(b) A Report titled “Budget Briefs: Targeted Public
Distribution System (TPDS), GOI 2011-2012” prepared by
Avani Kapur and Anirvan Chowdhury and published by the
Accountability Initiative observed that there were large

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 373 of 567

number of fake ration cards which were causing
inefficiencies in targeting. Between July 2006 and July
2010, in Bihar, Madhya Pradesh, Uttar Pradesh and
Orissa, total of 37 lakh ineligible/fake ration cards for
households have been eliminated. Additionally, in
Maharashtra and Madhya Pradesh, 29 lakh and 25 lakh
ineligible ration cards were discovered and cancelled.

(c) World Bank published a Discussion Paper No. 380
titled “India’s Public Distribution System: A National and
International Perspective” dated November, 1997 co-
authored by R. Radhakrishna and K. Subbarao, in which it
was found that in the year in 1986-87 for every one rupee
(Re. 1) transferred under the PDS, the expenditure
incurred by the central government was Rs. 4.27.

(d) The Planning Commission of India in its
Performance Evaluation Report titled “Performance
Evaluation Report of Targeted Public Distribution System
(TPDS)” dated March, 2005 found as follows:

(i) State-wise figure of excess Ration Cards in various
states and the existence of over 1.52 Crore excess Ration
Cards issued.

(ii) Existence of fictitious households and identification
errors leading to exclusion of genuine beneficiaries.

(iii) Leakage through ghost BPL Ration Cards found to
be prevalent in almost all the states under study.

(iv) The Leakage of food grains through ghost cards has
been tabulated and the percentage of such leakage on an
All India basis has been estimated at 16.67%.

(v) It is concluded that a large part of the subsidized
food-grains were not reaching the target group.

(II) Report relating to Fuel subsidies

13. With respect of Kerosene subsidies:

(a) A Report titled “Budgetary Subsidies in India –
Subsidizing Social and Economic Services” prepared by
the National Institute of Public Finance and Policy dated
March, found that the key to lowering volume of subsidies
was better targeting without which, there was significant

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leakage to unintended beneficiaries, with only 70% of the
kerosene reaching the poorer section of society.

(b) The Economic Survey 2014-15 at Chapter 3 titled
“Wiping Every Tear from every Eye: The JAM Number
Trinity Solution” dated February, 2015 noted that only 59
percent of subsidized kerosene allocated via the PDS is
actually consumed by households, with the remainder lost
to leakage and only 46 percent of total consumption is by
poor households.

14. With respect to the MGNREGA Scheme the following
reports have found large scale leakages in the scheme:

(a) Report prepared by the V.V. Giri National Labour
Institute and sponsored by the Department of Rural
Development, Ministry of Rural Development, Government
of India as “The study of Schedule of Rates for National
Rural Employment Guarantee Scheme” observes that
there was great fraud in making fake job cards and it was
found that in many cases, it was found that workers
performed one day’s job, but their attendance was put for
33 days. The workers got money for one day while wages
for 32 days were misappropriated by the people associated
with the functioning of NREGS.

(b) The National Institute of Public Finance and Policy’s
report titled as “A Cost-benefit analysis of Aadhaar” dated
09.11.2012 estimated that a leakage of approximately 12
percent is being caused to the government on account of
ghost workers and manipulated muster rolls and assumed
that 5 percent of the leakages can be plugged through
wage disbursement using Aadhaar-enabled bank accounts
and 7 percent through automation of muster rolls.

(III) It was also pointed out that the Thirteenth Finance
Commission Report for 2010-2015 dated December, 2009
at page 218 in “Chapter 12 – Grants in Aid” states that the
creation of a biometric-based unique identity for all
residents in the country has the potential to address need
of the government to ensure that only eligible persons are
provided subsidies and benefits and that all eligible
persons are covered.

The relevant findings of the above Report are as
follows:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 375 of 567

(i) Government of India’s expenditure on subsidies is
expected to be about Rs.1,11,000 Crore in 2009-10, or
nearly 18 per cent of the non-plan revenue expenditure.

(ii) The data base of eligible persons presently
maintained has both Type I (exclusion) and Type II
(inclusion) errors. The first error arises from the difficulty
faced by the poor in establishing their identity in order to be
eligible for government subsidies and social safety net
programmes. The second error arises because of the
inability to cross-verify lists of eligible persons across
district-level and state-level data bases to eliminate
duplicate and ghost entries. We need to ensure that only
eligible persons are provided subsidies and benefits and
that all eligible persons are covered.

(iii) Creation of a biometric-based unique identity for all
residents in the country has the potential to address both
these dimensions simultaneously. It will provide the basis
for focusing subsidies to target groups. Possession of
such an identity will also enable the poor and
underprivileged to leverage other resources like bank
accounts, cell phones, which can empower them and
catalyse their income growth. These benefits cannot be
accessed by them presently due to their inability to provide
acceptable identification. The initiative to provide unique
IDs has the potential to significantly improve the
governance and delivery framework of public services
while substantially reducing transaction costs, leakages
and frauds.

308) As against the above larger public interest, the invasion into the

privacy rights of these beneficiaries is minimal. By no means it

can be said that it has disproportionate effect on the right holder.

309) Intensity of review depends upon the particular context of

question in a given case. There is yet another significant angle in

these matters, which has to be emphasised at this stage viz.

dignity in the form of autonomy (informational privacy) and dignity

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 376 of 567

in the form of assuring better living standards, of the same

individual. In the instant case, a holistic view of the matter,

having regard to the detailed discussion hereinabove, would

amply demonstrate that enrolment in Aadhaar of the unprivileged

and marginalised section of the society, in order to avail the fruits

of welfare schemes of the Government, actually amounts to

empowering these persons. On the one hand, it gives such

individuals their unique identity and, on the other hand, it also

enables such individuals to avail the fruits of welfare schemes of

the Government which are floated as socio-economic welfare

measures to uplift such classes. In that sense, the scheme

ensures dignity to such individuals. This facet of dignity cannot

be lost sight of and needs to be acknowledged. We are, by no

means, accepting that when dignity in the form of economic

welfare is given, the State is entitled to rob that person of his

liberty. That can never be allowed. We are concerned with the

balancing of the two facets of dignity. Here we find that the

inroads into the privacy rights where these individuals are made

to part with their biometric information, is minimal. It is coupled

with the fact that there is no data collection on the movements of

such individuals, when they avail benefits under
Section 7
of the

Act thereby ruling out the possibility of creating their profiles. In

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 377 of 567

fact, this technology becomes a vital tool of ensuring good

governance in a social welfare state. We, therefore, are of the

opinion that the Aadhaar Act meets the test of balancing as well.

310) We may profitably refer to the judgment of this Court in People’s

Union for
Civil Liberties (PUCL) & Anr. v. Union of India & Anr.104

which dealt with the issue of right to privacy vis-a-vis in public

interest and leaned in favour of public interest which can be seen

from the following discussion:

“121. It has been contended with much force that the right
to information made available to the voters/citizens by
judicial interpretation has to be balanced with the right of
privacy of the spouse of the contesting candidate and any
insistence on the disclosure of assets and liabilities of the
spouse invades his/her right to privacy which is implied in

Article 21.
After giving anxious consideration to this
argument, I am unable to uphold the same.
In this context,
I would like to recall the apt words of Mathew, J., in
Gobind
v. State of M.P.
[1969 UJ (SC) 616] While analysing the
right to privacy as an ingredient of
Article 21
, it was
observed: (SCC p. 155, para 22)

“22. There can be no doubt that privacy-dignity claims
deserve to be examined with care and to be denied
only when an important countervailing interest is
shown to be superior.”
(emphasis supplied)

It was then said succinctly: (SCC pp. 155-56, para

22)

“If the court does find that a claimed right is entitled to
protection as a fundamental privacy right, a law
infringing it must satisfy the compelling State-interest
test. Then the question would be whether a State

104(2003) 4 SCC 399

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 378 of 567

interest is of such paramount importance as would
justify an infringement of the right.”

It was further explained: (SCC p. 156, para 23)

“[P]rivacy primarily concerns the individual. It
therefore relates to and overlaps with the concept of
liberty. The most serious advocate of privacy must
confess that there are serious problems of defining
the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other
rights and values.”

By calling upon the contesting candidate to disclose
the assets and liabilities of his/her spouse, the
fundamental right to information of a voter/citizen is
thereby promoted. When there is a competition
between the right to privacy of an individual and the
right to information of the citizens, the former right
has to be subordinated to the latter right as it serves
the larger public interest. The right to know about the
candidate who intends to become a public figure and
a representative of the people would not be effective
and real if only truncated information of the assets
and liabilities is given. It cannot be denied that the
family relationship and social order in our country is
such that the husband and wife look to the properties
held by them as belonging to the family for all
practical purposes, though in the eye of law the
properties may distinctly belong to each of them. By
and large, there exists a sort of unity of interest in the
properties held by spouses. The property being kept
in the name of the spouse benami is not unknown in
our country. In this situation, it could be said that a
countervailing or paramount interest is involved in
requiring a candidate who chooses to subject
himself/herself to public gaze and scrutiny to furnish
the details of assets and liabilities of the spouse as
well. That is one way of looking at the problem. More
important, it is to be noted that Parliament itself
accepted in principle that not only the assets of the
elected candidates but also his or her spouse and
dependent children should be disclosed to the
constitutional authority and the right of privacy should
not come in the way of such disclosure;...”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 379 of 567

311) In Vernonia School District 47J v. Acton et ux., Guardians Ad

Litem for Acton105, the Supreme Court of United States, while

repelling the Fourth Amendment challenge wherein the petitioner

had adopted a Drug Policy which authorised random urinalysis

drug testing of students participating in athletics programs,

remarked as under:

“Taking into account all the factors we have considered
above- the decreased expectation of privacy, the relative
unobtrusiveness of the search, and the severity of the need
met by the search-we conclude Vernonia’s Policy is
reasonable and hence constitutional.”

312) This very exercise of balancing of two fundamental rights was

also carried out in
Subramanian Swamy v. Union of India,

Ministry of Law & Ors.106
where the Court dealt with the matter in

the following manner:

“122.
In
State of Madras v. V.G. Row [State of Madras
v.
V.G. Row, AIR 1952 SC 196 : 1952 Cri LJ 966], the Court
has ruled that the test of reasonableness, wherever
prescribed, should be applied to each individual statute
impugned and no abstract standard, or general pattern of
reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, should all enter into the
judicial verdict.

xx xx xx

105515 US 646 (1995)
106(2016) 7 SCC 221

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 380 of 567

130. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that the
restriction should not be excessive and in public interest.

The legislation should not invade the rights and should not
smack of arbitrariness. The test of reasonableness cannot
be determined by laying down any abstract standard or
general pattern. It would depend upon the nature of the
right which has been infringed or sought to be infringed.
The ultimate “impact”, that is, effect on the right has to be
determined. The “impact doctrine” or the principle of
“inevitable effect” or “inevitable consequence” stands in
contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of
the case. The prevailing conditions of the time and the
principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The
nature of social control which includes public interest has a
role. The conception of social interest has to be borne in
mind while considering reasonableness of the restriction
imposed on a right. The social interest principle would
include the felt needs of the society.

xx xx xx

Balancing of fundamental rights

136. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights.
It has been argued by the learned counsel for the
petitioners that the right conferred under
Article 19(1)(a)

has to be kept at a different pedestal than the individual
reputation which has been recognised as an aspect of

Article 21
of the Constitution. In fact the submission is that
right to freedom of speech and expression which includes
freedom of press should be given higher status and the
individual's right to have his/her reputation should yield to
the said right.
In this regard a passage from
Sakal Papers
(P) Ltd. [Sakal Papers (P) Ltd. v. Union of India
, (1962) 3
SCR 842 : AIR 1962 SC 305] has been commended to us.
It says: (AIR pp. 313-14, para 36)

“36. … Freedom of speech can be restricted only in
the interests of the security of the State, friendly
relations with foreign State, public order, decency or
morality or in relation to contempt of court,
defamation or incitement to an offence. It cannot, like

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 381 of 567

the freedom to carry on business, be curtailed in the
interest of the general public. If a law directly affecting
it is challenged, it is no answer that the restrictions
enacted by it are justifiable under clauses (3) to (6).
For, the scheme of
Article 19
is to enumerate different
freedoms separately and then to specify the extent of
restrictions to which they may be subjected and the
objects for securing which this could be done. A
citizen is entitled to enjoy each and every one of the
freedoms together and clause (1) does not prefer one
freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make
a law which directly restricts one freedom even for
securing the better enjoyment of another freedom.”
(emphasis supplied)

137. Having bestowed our anxious consideration on the
said passage, we are disposed to think that the above
passage is of no assistance to the petitioners, for the issue
herein is sustenance and balancing of the separate rights,
one under
Article 19(1)(a)
and the other, under
Article 21.

Hence, the concept of equipoise and counterweighing
fundamental rights of one with other person. It is not a case
of mere better enjoyment of another freedom. In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj v.
State of Gujarat [Acharya Maharajshri Narendra Prasadji
Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC
11], it has been observed that a particular fundamental
right cannot exist in isolation in a watertight compartment.
One fundamental right of a person may have to coexist in
harmony with the exercise of another fundamental right by
others and also with reasonable and valid exercise of
power by the State in the light of the directive principles in
the interests of social welfare as a whole. The Court's duty
is to strike a balance between competing claims of different
interests…

xx xx xx

194. Needless to emphasise that when a law limits a
constitutional right which many laws do, such limitation is
constitutional if it is proportional. The law imposing
restriction is proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a
purpose are rationally connected to the purpose, and such
measures are necessary. Such limitations should not be
arbitrary or of an excessive nature beyond what is required

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 382 of 567

in the interest of the public. Reasonableness is judged with
reference to the objective which the legislation seeks to
achieve, and must not be in excess of that objective (see

P.P. Enterprises v. Union of India [P.P. Enterprises
v. Union
of India, (1982) 2 SCC 33 : 1982 SCC (Cri) 341]).
Further,
the reasonableness is examined in an objective manner
from the standpoint of the interest of the general public and
not from the point of view of the person upon whom the
restrictions are imposed or abstract considerations (see
Mohd. Hanif Quareshi v. State of Bihar [Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731]).”

313) Thus, even when two aspects of the fundamental rights of the

same individual, which appear to be in conflict with each other, is

done, we find that the Aadhaar Act has struck a fair balance

between the right of privacy of the individual with right to life of

the same individual as a beneficiary.

In the face of the all pervading prescript for accomplished

socio-economic rights, that need to be given to the deprived and

marginalised section of the society, as the constitutional

imperative embodied in these provisions of the Act, it is entitled to

receive judicial imprimatur.

Re : Argument on Exclusion:

314) Some incidental aspects, however, remain to be discussed. It

was argued by the petitioners that the entire authentication

process is probabilistic in nature inasmuch as case of a genuine

person for authentication can result in rejection as biometric

technology does not guarantee 100% accuracy. It may happen

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 383 of 567

for various reasons, namely, advance age, damage to fingerprints

due to accident, etc. Even in case of children the fingerprints

may change when they grow up. The emphasis was that there

was a possibility of failure in authentication for various reasons

and when it happens it would result in the exclusion rather than

inclusion. In such eventuality an individual would not only be

denied the benefits of welfare schemes, it may threaten his very

identity and existence as well and it would be violative of
Articles
and
of the Constitution. The Authority has claimed that

biometric accuracy is 99.76%. It was, however, submitted that

where more than 110 crores of persons have enrolled

themselves, even 0.232% failure would be a phenomenal figure,

which comes to 27.60 lakh people. Therefore, the rate of

exclusion is alarming and this would result in depriving needy

persons to enjoy their fundamental rights, which is the so-called

laudable objective trumpeted by the respondents.

TO DICTATE FURTHER

Re. : Studies on exclusion

Re. : Finger prints of disabled, old persons etc. See other

mode of identity

315) The aforesaid apprehensions are sought to be assuaged by the

respondents by submitting that
Section 7
of the Act nowhere says

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 384 of 567

that if authentication fails, the concerned person would be

deprived of subsidies, benefits or services. It is only an enabling

provision. It also provides that in case of such a failure, such an

individual would be permitted to establish her identity by any

other means so that genuine persons are not deprived of their

benefits which are mentioned in
Section 7
as the entire Act is to

facilitate delivery of those benefits to such persons. Learned

Attorney General also referred to the Circular dated October 24,

2017 in this behalf which is issued by the Authority. That,

according to us, takes care of the problem.

316) We understand and appreciate that execution of the Aadhaar

scheme, which has otherwise a laudable objective, is a ‘work in

progress’. There have been substantial improvements in the

system over a period of time from the date of its launch. It was

stated by the learned Attorney General as well as Mr. Rakesh

Dwivedi, at the Bar, that whenever difficulties in implementation

are brought to the notice of the respondents, remedial measures

are taken with promptness. Cases of denial of services are

specifically looked into which is very much needed in a welfare

State and there can be a genuine hope that with the fine tuning of

technology, i.e. the mode of advancement at rapid pace, such

problems and concerns shall also be completely taken care of.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 385 of 567

317) In fairness to the petitioners, it is worth mentioning that they have

referred to the research carried out by some individuals and even

NGOs which have been relied upon to demonstrate that there are

number of instances leading to the exclusion i.e. the benefits are

allegedly denied on the ground of failure of authentication. The

respondents have refuted such studies. These become disputed

question of facts. It will be difficult to invalidate provisions of

Parliamentary legislations on the basis of such material, more

particularly, when their credence has not been tested.

318) That apart, there is another significant and more important aspect

which needs to be highlighted. The objective of the Act is to plug

the leakages and ensure that fruits of welfare schemes reach the

targeted population, for whom such schemes are actually meant.

This is the larger purpose, and very important public purpose,

which the Act is supposed to subserve. We have already held

that it fulfills legitimate aim and there is a rational connection

between the provisions of the Act and the goals which it seeks to

attain.
The Act
passes the muster of necessity stage as well

when we do not find any less restrictive measure which could be

equally effective in achieving the aim. In a situation like this

where the Act is aimed at achieving the aforesaid public purpose,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 386 of 567

striving to benefit millions of deserving people, can it be

invalidated only on the ground that there is a possibility of

exclusion of some of the seekers of these welfare schemes?

Answer has to be in the negative. We may hasten to add that by

no means, we are accepting that if such an exclusion takes place,

it is justified. We are only highlighting the fact that the

Government seems to be sincere in its efforts to ensure that no

such exclusion takes place and in those cases where an

individual who is rightfully entitled to benefits under the scheme is

not denied such a benefit merely because of failure of

authentication. In this scenario, the entire Aadhaar project cannot

be shelved. If that is done, it would cause much more harm to the

society.

319) We are also conscious of the situation where the formation of

fingerprints may undergo change for various reasons. It may

happen in the case of a child after she grows up; it may happen

in the case of an individual who gets old; it may also happen

because of damage to the fingers as a result of accident or some

disease etc. or because of suffering of some kind of disability for

whatever reason. Even iris test can fail due to certain reasons

including blindness of a person. We again emphasise that no

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 387 of 567

person rightfully entitled to the benefits shall be denied the same

on such grounds. It would be appropriate if a suitable provision

be made in the concerned regulations for establishing an identity

by alternate means, in such situations. Furthermore, if there is a

0.232% failure in authentication, it also cannot be said that all

these failures were only in those cases where authentication was

for the purpose of utilising for the benefit of the welfare schemes,

i.e. with reference to
Section 7
of the Act. It could have

happened in other cases as well. Be as it may, there is yet

another angle which has to be kept in mind and cannot be

ignored. We have already highlighted above as to how the

Aadhaar project is aimed at serving a much larger public interest.

The Authority has claimed that biometric accuracy is 99.76% and

the petitioners have also proceeded on that basis. In this

scenario, if the Aadhaar project is shelved, 99.76% beneficiaries

are going to suffer. Would it not lead to their exclusion? It will

amount to throwing the baby out of hot water along with the

water. In the name of 0.232% failure (which can in any case be

remedied) should be revert to the pre-Aadhaar stage with a

system of leakages, pilferages and corruption in the

implementation of welfare schemes meant for marginalised

section of the society, the full fruits thereof were not reaching to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 388 of 567

such people? The Aadhaar programme was conceived and

conceptualised by Mr. Nandan Nilekani under the leadership of

then Prime Minister, a great economist himself. It went through

rigorous process of testing about its effectiveness before it is

launched. This has been stated in the beginning. The entire aim

behind launching this programme is the ‘inclusion’ of the

deserving persons who need to get such benefits. When it is

serving much larger purpose by reaching hundreds of millions of

deserving persons, it cannot be crucified on the unproven plea of

exclusion of some. We again repeat that the Court is not

trivialising the problem of exclusion if it is there. However, what

we are emphasising is that remedy is to plug the loopholes rather

than axe a project, aimed for the welfare of large section of the

society. Obviously, in order to address the failures of

authentication, the remedy is to adopt alternate methods for

identifying such persons, after finding the causes of failure in their

cases. We have chosen this path which leads to better

equilibrium and have given necessary directions also in this

behalf.

320) Another facet which needs examination at this stage is the

meaning that is to be assigned to the expression ‘benefits’

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 389 of 567

occurring in Section 7 of the Aadhaar Act, along with ‘subsidies’

and ‘services’. It was argued that the expression ‘benefits’ is very

lose and wide and the respondents may attempt to bring within its

sweep any and every kind of governmental activity in the name of

welfare of communities, which would result in making the

requirement of Aadhaar virtually mandatory. It was pointed out

that by issuing various circulars the Government has already

brought within the sweep of
Section 7
, almost 139 such

subsidies, services and benefits.

321) No doubt, the Government cannot take umbrage under the

aforesaid provision to enlarge the scope of subsidies, services

and benefits. ‘Benefits’ should be such which are in the nature of

welfare schemes for which resources are to be drawn from the

Consolidated Fund of India.

Therefore actions by CBSE, NEET, JEE and UGC requirements

for scholarship shall not be covered under
Section 7
, unless it is

demonstrated that the expenditure is incurred from Consolidated

Fund of India. Further, the expression ‘benefit’ has to be read

ejusdem generis with the preceding word ‘subsidies’.

322) We also make it clear that a benefit which is earned by an

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 390 of 567

individual (e.g. pension by a government employee) cannot be

covered under
Section 7
of the Act, as it is the right of the

individual to receive such benefit.

At the same time, we have gone through the list of notifications

which are issued under Section 7 of the Aadhaar Act. We find

that most of these notifications pertain to various welfare

schemes under which benefits, subsidies or services are provided

to the intending recipients. Moreover, in order to avail the

benefits, only one time verification is required except for few

services where annual verification is needed. It is only in respect

of fertilizer subsidy where authentication is required every time

the fertilizer is disbursed. However, it is clarified that fertilizer is

also given on the basis of other documents such as Kisan Credit

Card, etc. At the same time, we hope that the respondents shall

not unduly expand the scope of ‘subsidies, services and benefits’

thereby widening the net of Aadhaar, where it is not permitted

otherwise. Insofar as notifications relating to children are

concerned, we have already dealt with the same separately. We,

thus, conclude this aspect as under:

(a) ‘benefits’ and ‘services’ as mentioned in
Section 7
should be

those which have the colour of some kind of subsidies etc.,

namely, welfare schemes of the Government whereby

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 391 of 567

Government is doling out such benefits which are targeted at a

particular deprived class.

(b) The expenditure thereof has to be drawn from the

Consolidated Fund of India.

(c) On that basis, CBSE, NEET, JEE, UGC etc. cannot make

the requirement of Aadhaar mandatory as they are outside the

purview of
Section 7
and are not backed by any law.

Children:

323) Though, we have upheld, in general, the validity of Section 7 of

the Aadhaar Act, one specific aspect thereof is yet to be

considered.
Section 7
mandates requirement of Aadhaar for the

purposes of receiving certain subsidies, benefits and services.

Thus, any individual who wants to seek any of these subsidies,

benefits and services is compulsorily required to have an

Aadhaar number. This will include children as well. Some of the

petitioners as well as some other applicants who have intervened

in these petitions have expressed their concern about the

mandatory requirement of Aadhaar for children and subsequent

linking for realising their basic rights including education. They

have referred to various circulars and notifications issued through

various functionaries, schools, The Ministry of Human Resource

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 392 of 567

Development (MHRD) which have mandated production of

Aadhaar card details for the children seeking admission to

schools and to link the Aadhaar of the students already enrolled.

We have held that Aadhaar is a voluntary scheme and, therefore,

the Aadhaar number is to be alloted to an individual on his

‘consent’. No doubt, for the purposes of utilising any of the

benefits under Section 7 of the Aadhaar Act, it becomes

necessary to have Aadhaar number. However, the question is as

to whether it can be extended to children? It is more so when

they are not under legal capacity to provide any ‘consent’ under

the law.

324)
Article 21A
of the Constitution guarantees right to education and

makes it fundamental right of the children between 6 years and

14 years of age. Such a right cannot be taken away by imposing

requirement of holding Aadhaar card, upon the children.

325) In view thereof, admission of a child in his school cannot be

covered under Section 7 of the Aadhaar Act as it is neither

subsidy nor service. No doubt, the expression ‘benefit’ occurring

in
Section 7
is very wide. At the same time, it has to be given

restrictive meaning and the admission of children in the schools,

when they have fundamental right to education, would not be

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 393 of 567

covered by
Section 7
, in our considered view. The respondents

made an attempt to justify the linkage of Aadhaar with child

information and records by arguing that there have been several

instances of either impersonations at examinations or bogus

admissions which have the potential to pilfer away various

scholarship schemes which the Government provides for weaker

sections from time to time. If this is the objective, then also

requirement of Aadhaar cannot insisted at the time of admission

but only at the stage of application for Government scholarships.

Insofar as impersonation at examination is concerned, that can

be easily checked and contained by other means with effective

checks and balances. When there are alternative means,

insistence on Aadhaar would not satisfy the test or proportionality.

This would violate the privacy right of the children importance

whereto is given by the Constitution Bench in K.S. Puttaswamy in

the following words:

“633. Children around the world create perpetual digital
footprints on social network websites on a 24/7 basis as
they learn their ‘ABCs’: Apple, Bluetooth, and Chat followed
by Download, E-Mail, Facebook, Google, Hotmail, and
Instagram. They should not be subjected to the
consequences of their childish mistakes and naivety, their
entire life. Privacy of children will require special protection
not just in the context of the virtual world, but also the real
world.”

326) It is also important to note herein that the
Juvenile Justice Act
,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 394 of 567

2015 while addressing children in need of care and protection

and children in conflict with law enunciates that the records of the

children are confidential and will not be parted with unless

requested by the Children’s Court. In contrast, the submission of

the Union justifying linking of Aadhaar with student records on

malpractice in examinations and potential bogus admissions with

no safeguards whatsoever.

327) It has to be kept in mind that when the children are incapable of

giving consent, foisting compulsion of having Aadhaar card upon

them would be totally disproportionate and would fail to meet the

proportionality test. As the law exists today, a child can hold

property, operate a bank account, be eligible to be a nominee in

an insurance policy or a bank account or have any financial

transaction only through a legal guardian who has to be a major

of sound mind. In cases where a child is in conflict with the law,

the child is given a special criminal trial under the
Juvenile Justice

(Care and Protection of Children) Act, 2015
and there is a

mandatory requirement for the records to be kept confidential and

destroyed so that the criminal record of the child is not

maintained. This is the position in law contained in
Section 11
of

the Indian Contract Act, 1872, Section 45ZA of the Banking

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 395 of 567

Regulation Act, 1949
,
Section 39
of the Insurance Act, 1938,

Section 90
of the Indian Penal Code (which provides that consent

of the child who is under 12 years of age shall not be regarded as

consent) etc. Thus, when a child is not competent to contract;

not in a position to consent; barred from transferring property;

prohibited from taking employment; and not allowed to

open/operate bank accounts and, as a consequence, not in a

position to negotiate her rights, thirsting upon compulsory

requirement of holding Aadhaar would be an inviable inroad into

their fundamental rights under
Article 21.
The restriction imposed

on such a right in the form of an Aadhaar cannot be treated as

constitutionally justified. We may also mention here that State is

supposed to keep in mind the best interest of the children which

is regarded as primary consideration in our Constitution (See

R.D. Upadhyay v. State of Andhra Pradesh & Ors.107
). The

convention on the Rights of Child 108 reiterates that the best

interests of the child will be the basic concern of the parents or

legal guardians of the child. The Constitution affirms acting in the

best interest of the children and confers the responsibility on the

State to not only safeguard the best interests of children but also

act in furtherance of it. Therefore, we are of the opinion that the
107(2007) 15 SCC 49
108India acceded to the UN Convention on the Rights of the Child in December 1992 to reiterate its
commitment to the cause of the children.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 396 of 567

State is constitutionally bound to facilitate and enable the parents

and guardians of the children to assert their rights and act in their

best interest and this has to be done without having any

mandatory directives to it. The onus of overseeing and lawfully

safeguarding the rights and immunities, to which children are

entitled to, rests on the State and the authorities under it. Giving

proper education to children and ensuring that they become

valuable citizens of this nation subserves public interest. This is

the mandate of Convention on the Rights of Child (CRC) as well.

We may reproduce
Article 27
of the CRC:

“States Parties recognize the right of every child to a
standard of living adequate for the child’s physical, mental,
spiritual, moral and social development.

2. The parent(s) or others responsible for the child have
the primary responsibility to secure, within their abilities
and financial capacities, the conditions of living necessary
for the child’s development.

3. States Parties, in accordance with national conditions
and within their means, shall take appropriate measures to
assist parents and others responsible for the child to
implement this right and shall in case of need provide
material assistance and support programmes, particularly
with regard to nutrition, clothing and housing.”

328)
Article 8
of the CRC provides that:

“(2) For the purpose of guaranteeing and promoting the
rights set forth in the present Convention, States Parties
shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing
responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 397 of 567

(3) States Parties shall take all appropriate measures to
ensure that children of working parents have the right to
benefit from child-care services and facilities for which they
are eligible.”

329) Further,
Article 16
of the Convention on the Rights of Child, 1989

bars children from being subject to arbitrary or unlawful

interference in their privacy, family, home, or correspondence.

One of the principles espousing the
Juvenile Justice Act, 2015
is

the principle of confidentiality.
Section 24
of the Act, dealing with

children in conflict with law, further emphasizes:

“(2) The Board shall make an order directing the Police, or
by the Children’s court to its own registry that the relevant
records of such conviction shall be destroyed after the
expiry of the period of appeal or, as the case may be, a
reasonable period as may be prescribed.”

330)
Section 3
of the Juvenile Justice Act, 2015 expounds the

principles underlying the process in dealing with children under

the Statute. The principle of right to privacy and confidentiality

emphasizes, “Every child shall have a right to protection of his

privacy and confidentiality, by all means and throughout the

judicial process.”

331) We would like to reproduce the following observations of English

quote in Murray v. Big Pictures (UK) Ltd.109 where greatest

109(2008) 3 WLR 1360

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 398 of 567

significance is attached to the privacy right when it comes to

children. That was a case where photographer had taken a series

of photographs of a writer’s infant son, which were later published

in a newspaper. The issue was whether there was misuse of

private information by taking photographs. It was held that:

“The question of whether there is a reasonable expectation
of privacy is a broad one, which takes account of all the
circumstances of the case. They include the attributes of
the claimant, the nature of the activity in which the claimant
was engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence of
consent and whether it was known or could be inferred, the
effect on the claimant and the circumstances in which and
the purposes for which the information came into the hands
of the publisher...It is at least arguable that David had a
reasonable expectation of privacy. The fact that he is a
child is in our view of greater significance than the judge
thought.”

We may also record at this stage that various circulars,

orders and notifications are issued by different Ministries and

Departments under Section 7 of the Aadhaar Act which pertain to

children. Some of these are:

(1) National Child Labour Project (NCLP).

(2) Scholarship schemes which are given to school students,

like National Means-cum-Merit Scholarship Scheme;

National Scheme of Incentive to Girls for Secondary

Education; Benefit to 6 to 14 years children under Sarva

Shiksha Abhiyan; Inclusive Education of the Disabled at

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 399 of 567

Secondary State; and Mid-day Meal for Children.

(3) Assistance/Scholarship given by the Department of

Empowerment to the Persons with Disabilities, which

include Scholarship Schemes for education of students

with disabilities.

(4) Following Schemes floated by the Ministry of Women and

Child Development, some of which relate to children:

(a) Supplementary Nutrition Programme under ICDS

Scheme.

(b) Payment of honorarium to AWWs & AWHs under

ICDS Scheme.

(c) Supplementary Nutrition for children offered at Creche

Centres.

(d) Honorarium paid towards the Creche Workers and

Creche Helpers.

(e) Maternity Benefit Programme (MBP).

(f) Scheme for Adolescent Girls.

(g) National Mission for Empowerment of Women.

(h) ICDS Training Programme.

(i) Ujjawala Scheme.

(j) Swadhar Scheme.

(k) Integrated Child Protection Scheme.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 400 of 567

(l) STEP programme.

(m) Rashtriya Mahila Kosh.

(n) Pradhan Mantri Matru Vanana Yojana.

(5) Painting and Essay competitions for school children under

IEC component of Human Resource Development and

Capacity Building.

332) After considering the matter in depth and having regard to the

discussion aforesaid, we hold as under:

(a) For the enrolment of children under the Aadhaar Act, it

would be essential to have the consent of their parents/guardian.

(b) On attaining the age of majority, such children who are

enrolled under Aadhaar with the consent of their parents, shall be

given the right to exit from Aadhaar, if they so choose.

(c) Insofar as the school admissions of children are concerned,

requirement of Aadhaar would not be compulsory as it is neither a

service nor subsidy. Further, having regard to the fact that a child

between the age of 6 to 14 years has the fundamental right to

education under
Article 21A
of the Constitution, school admission

cannot be treated as ‘benefit’ as well.

(d) Benefits to children between 6 to 14 years under Sarva

Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 401 of 567

enrolment.

(e) For availing the benefits of other welfare schemes which are

covered by Section 7 of the Aadhaar Act, though enrolment

number can be insisted, it would be subject to the consent of the

parents, as mentioned in (a) above.

(f) We also clarify that no child shall be denied benefit of any of

these schemes if, for some reasons, she is not able to produce

the Aadhaar number and the benefit shall be given by verifying

the identity on the basis of any other documents. We may record

that a statement to this effect was also made by Mr. K.K.

Venugopal, learned Attorney General for India, at the Bar.

Challenge to the other provisions of the Aadhaar Act:

333) The petitioners have challenged the constitutionality of certain

other provisions of Aadhaar Act as well. They have submitted

their reasons on the basis of which they are seeking the

declaration to the effect these provisions are unconstitutional. We

reproduce the provisions of Aadhaar Act as well as reasons given

by the petitioners in tabulated form, as under:

S.No. Provisions of the Reason for being unconstitutional
Aadhaar Act

1.
Section 2(c)
and
2(d)
- ‘Authentication Record’ includes the time of
authentication and authentication and the identity of the
authentication record, requesting entity. The UIDAI and the
read with
Section 32
Authentication Service Agency (ASA) is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 402 of 567

permitted to store this authentication record
for 2+5 years (as per Regulations 20 and
26/27 of the Authentication Regulations).

By definition it provides for real-time
surveillance and profiling. The record
stores both the time and the identity of the
requesting entity.

2.
Section 2(h)
read with The notion of CIDR is by itself an

Section 10
of CIDR unconstitutional database. The statute
cannot operate without a CIDR. The notion
of a CIDR where every individual’s
biometric as well as demographic
information is centrally stored is an
authoritarian or police state construct and
has no place in a democracy that
guarantees individual freedom. A CIDR
from where data can be backed, and which
is operated not by the respondents but by
foreign entities, is conceptually and
constitutionally an impermissible
compromise on national sovereignty and
security.

Notably,
Section 10
empowers UIDAI to
appoint one or more entity to establish and
maintain the CIDR.

3.
Section 2(l)
read with The notion of an enrolling agency as

Regulation 23
of the defined in
Section 2(l)
is also
Aadhaar (Enrolment unconstitutional inasmuch as the agency,
and Updates) as defined, need not be a Government
Regulation - ‘enrolling entity but could be a private entity. The
agency’ collection of sensitive personal biometric
and demographic data and information for
the purposes of storage must be conducted
by a Government agency alone since this is
a bare minimum procedural safeguard
against the misuse and commercial
exploitation of private personal information.
The State, acting as a trustee and fiduciary,
cannot delegate or require private enrolling
agencies to discharge this non-delegable
function. Moreover, an enrolling agency
that is operated privately cannot be
entrusted with the crucial tasks of
explaining the voluntary nature of Aadhaar

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 403 of 567

enrolments and securing informed consent.

4.
Section 2(v)
- ‘resident’ The expression ‘Resident’ defined in

Section 2(v)
is arbitrary and
unconstitutional inasmuch as the Act
creates no credible machinery for
evaluating a claim that a person has been
residing in India for a period of 182 days or
more, in the 12 months immediately
preceding the date of application for
enrolment. The forms being used by the
respondents as also proof of identification
and proof of address requirement being
used by the respondents until enactment of
the statute nowhere require any proof
relating to residence for 182 days. The
impugned Act purports to validate all these
enrolments. The forms being used by the
respondents do not even contain a
declaration regarding the enrolee being
resident for 182 days. Further, there is no
requirement in the definition of ‘Resident’
that the person has to be legally resident
and the expression would wrongly take in
illegal immigrants as well.

5.
Section 3
– Aadhaar It is an ‘entitlement’. It cannot be
Number understood to be mandatory. The
information provided under
Section 3(2)
is
of no relevance if obtaining Aadhaar is
made mandatory. By design, Aadhaar was
never meant to be mandatory.

6.
Section 5
– Special Section 5 of the Aadhaar Act, inasmuch as
treatment to children it extends to children and persons with
disabilities, implies that the State is
securing biometric and demographic data
even before the age of consent insofar as
children are concerned.
The Act
in its
coercive reach and application to children
who have not attained the age of consent is
per se unconstitutional and violate of the
fundamental rights of the children.

7.
Section 6
– Update of
Section 6
of the Act is unconstitutional
information inasmuch as it enables the respondents to
continually compel residents to periodically
furnish demographic and biometric
information. This provision is coercive in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 404 of 567

operation and effect and not only
undermines the so-called ‘voluntary’ nature
of the programme (as falsely claimed by
the respondents) but also undermines the
false claim with respect to the ‘reliability of
biometrics’.

8.
Section 8

Section 8
is unconstitutional inasmuch as it
enables tracking, tagging and profiling of
individuals through the authentication
process. It is a charter for surveillance in
real time and with a degree of specificity
that enables persons’ physical movements
to be traced in real time. The
authentication mandate in terms of
Section
is not being worked by the respondents
through any proprietary technology and is
outsourced to foreign entities or entities
under the ownership and control of foreign
companies and corporations. The entire
framework and working of the
authentication procedure in terms of

Section 8
is an impermissible, permanent
and irreversible compromise of national
sovereignty and national security.

9.
Section 9
Section 9 of the Aadhaar Act is also
unconstitutional inasmuch as the Aadhaar
number is de facto serving as proof of
citizenship and domicile. This is seen from
various media reports where even in the
absence of any rigorous verification
process, Aadhaar numbers are being
issued. The petitioners submit that equally
subversive of national security and national
integrity is the practice of passports being
issued based upon an Aadhaar card. In
other words, persons who may not be
entitled to passports are having Aadhaar
numbers issued and thereafter securing
passports in violation of the citizenship
provisions.

10. Chapter IV – Sections The petitioners submit that the whole of
11 to 23
Chapter IV of the Act
comprising
Sections
to
is ultra vires and unconstitutional.
The Constitution does not permit the
establishment of an authority that in turn

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 405 of 567

through an invasive programme can chain
every Indian citizen/resident to a central
data bank and maintain lifelong records
and logs of that individual. The
Constitution of India when read as a whole
is designed for a nation of free individuals
who enjoy a full range of rights and who are
entitled under the Constitution to lead their
lives without any monitoring or scrutiny or
continuous oversight by the State or any of
its organs. The high value of personal
freedom runs throughout the fabric of the
Indian Constitution and any authority
created for the purpose of ‘cradle to grave’
scrutiny is directly violative of the personal
freedom charter built into the Indian
Constitution. The Constitution of India
does not contemplate a ‘nanny state’ where
the State oversees every individual’s
conduct and maintains a record of
individual interactions. The UIDAI by
design and function is created for an
absolutely unconstitutional objective of
invading privacy, electronically overseeing
individuals and tethering them to a central
data repository that will maintain lifelong
records. The notion of individual freedom
must entail the right to be alone; the right of
an individual to be free from any monitoring
so long as that individual does not breach
or transgress any criminal law. Here, the
establishment of the second respondent is
for an unconstitutional purpose of
overseeing and monitoring individual
conduct even where the person does not
remotely fall foul of any law. The second
respondent is a State organ designed to
invade individual freedom and whose
purpose is to constrict individual freedom.

11.
Sections 23
and
–
Section 23
, read with
Section 54
of the
excessive delegation Aadhaar Act, is unconstitutional on the
ground of excessive delegation.

A perusal of the sub-clauses in
Section
23(2)
and
Section 54(2)
indicate that on
every crucial aspect pertaining to biometric

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data, demographic information, the
operation and working of the CIDR,
generating and assigning Aadhaar
numbers, authentication of Aadhaar
numbers, omitting and deactivating
Aadhaar numbers, commercial exploitation
of information collected by the Government,
etc. are all left entirely to the UIDAI without
any sufficient defined legislative policy
indicating the limits within which the UIDAI
may legitimately operate.

Having regard to the invasive nature of the
Aadhaar programme, its deep and
pervasive impact on civil liberties and the
fiduciary/trusteeship principle based on
which data and information is being
collected, it was incumbent upon the
legislature to set out detailed and adequate
limits to restrict the discretion conferred on
the UIDAI. The impugned provisions
virtually give an unlimited charter to the
UIDAI to ride rough shod over fundamental
rights by framing regulations as it pleases.

12.
Section 23(2)(g)
read This empowers the UIDAI alone to omit and
with Chapter VI & VII – deactivate an Aadhaar number with almost
Regulations 27 to 32 of no redressal to the individual Aadhaar
the Aadhaar (Enrolment number holder.
Regulation 27(2)
provides
and Update) that upon cancellation of an Aadhaar
Regulations, 2016 number, all services provided by the
authority shall be permanently disabled.

Regulation 28(2)
provides that upon
deactivation of an Aadhaar number, all
numbers shall be temporarily suspended till
such time that the Aadhaar number holder
updates or rectifies the alleged error.

Notably, as per
Regulation 30
, there shall
be a post facto communication of omission
or deactivation of the Aadhaar number shall
be informed to the Aadhaar number holder.

The only redressal mechanism provided
under the Aadhaar Act is under
Regulation
wherein a grievance redressal call
centre shall be provided by the UIDAI. This
provision provides unbridled power to the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 407 of 567

UIDAI to switch of the life of an individual.

There is absolutely no redressal
mechanism for the individual. He is not
even provided with an opportunity of
hearing prior to deactivation, which violates
principles of natural justice.

13.
Section 29
This Section is liable to be struck down
inasmuch as it pertains sharing of identity
information. The provisions suffer from the
vice of permitting the spread and
dissemination of sensitive personal
information through a network of entities
and individuals for commercial gain or
otherwise and allows for the sharing of
information beyond the ostensible object of
targeted deliveries.

Both the biometric as well as the
demographic information are entitled to the
highest degree of protection and the
impugned provision, inasmuch as it draws
a distinction between core biometric
information and other information, creates
an artificial distinction into two classes of
information which in law are both entitled to
equal protection against sharing or
dissemination.

Sub-section (4) permits UIDAI by regulation
to permit ‘core biometric information’ to be
displayed publicly.

14.
Section 33

Section 33
is unconstitutional inasmuch as
it provides for the use of the Aadhaar
database for police investigation pursuant
to an order of a competent court.
Section 3

violates the protection against self-

incrimination as enshrined under
Article
20(3)
of the Constitution of India.

Furthermore,
Section 33
does not afford an
opportunity of hearing to the concerned
individual whose information is sought to be
released by the UIDAI pursuant to the
Court’s order. This is contrary to the
principles of natural justice.

Section 33(2)
provides for disclosure of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 408 of 567

information in the interest of national
security pursuant to a direction of a
competent officer. The said provision is
also hit by the principles of protection
against self-incrimination, as enshrined
under
Article 20(3)
of the Constitution.

Further, the impugned Act does not define
‘interest of national security’ or otherwise
limit the circumstances where the said
provision can be invoked. This makes the
impugned provision unconstitutional as it
suffers from the vice of vagueness and
arbitrariness.

15.
Section 47

Section 47
of the impugned Act is
unconstitutional inasmuch as it does not
allow an individual citizen who finds that
there is a violation of the impugned Act to
initiate the criminal process. There could
be several circumstances where UIDAI
itself or some third party is guilty of having
committed offences under the Act. By
restricting the initiation of the criminal
process, the Aadhaar Act renders the penal
machinery ineffective and sterile. The said
section creates a bar on a court to take
cognizance of any offence under the
impugned Act, save on a complaint made
by the UIDAI or an officer authorized by it.

In effect there is a bar of cognizance of a
complaint made by an individual for breach
of his biometric or demographic information
which has been collected by the
respondent. Such bar is unconstitutional
as it forecloses legal remedy to affected
individuals.

16.
Section 48
– Power of This Section is vague and arbitrary
Central Government to inasmuch as it permits the Central
supersede UIDAI Government to take over the UIDAI.
The
Act
does not define a ‘pubic emergency’.

This Section empowers the Central
Government in an ‘emergency’ situation to
be in a position to completely control the
life of every citizen who is enrolled with the
UIDAI.

17.
Section 57

Section 57
is patently unconstitutional

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 409 of 567

inasmuch as it allows an unrestricted
extension of the Aadhaar platform to users
who may be Government agencies or
private sector operators. This provision
clearly shows that the impugned Act has a
much wider scope than what may
legitimately be considered as a Money Bill.

Moreover, this provision enables the
seeding of the Aadhaar number across
service providers and other gateways and
thereby enables the establishment of a
surveillance state. The impugned provision
enables the spread of applications and
Aadhaar dependent delivery systems that
are provided not from Consolidated Fund of
India resources but through any other
means.

It is submitted that
Section 57
also enables
commercial exploitation of an individual’s
biometrics and demographic information by
the respondents as well as private entities.
It ensures that creation of a surveillance
society, where every entity assists the State
to snoop upon an Aadhaar holder.

18.
Section 59

Section 59
of the impugned Act is
unconstitutional inasmuch as it seeks to
validate all action undertaken by the
Central Government pursuant to the
Notification dated January 28, 2009. It is
submitted that there was no consent, let
alone informed consent obtained from
individuals at the time of enrolment under
the said notification.

Such enrolment which has been conducted
without obtaining adequate consent is
unconstitutional as it amounts to wrongful
deprivation of the most intimate personal
information of an individual. Indeed, taking
of an individual’s biometric information
without informed consent is a physical
invasion of his or her bodily integrity. The
collection of demographic information
through private entities and without proper
counselling or written informed consent is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 410 of 567

illegal and incapable of being
retrospectively ratified. All these records
which have been illegally obtained and
created without necessary consent out to
be destroyed and cannot be said to be
validated by the impugned provision. The
Parliament cannot create a legal fiction of
‘consent’ where there was none.

The executive under the Constitution of
India cannot take away someone’s
fundamental right to privacy and then
support its action on the proposition of law
that ‘retrospectively’ deems consent must
have been given.

The said provision seeks to validate any
action taken by the Central Government
alone. The action of private enrolers is not
even sought to be protected. Therefore, all
collections made by private entities under
the said notification should also stand
invalidated and all data collected by private
entities should be destroyed forthwith.

334) We have already dealt with the issue of validity of some of the

provisions. We would now advert to the remaining provisions,

validity whereof is questioned.

Keeping in view the preceding discussion, challenge to

most of these provisions would fail. Insofar as
Section 2(l)
read

with
Regulation 23
of the Aadhaar (Enrolment and Update)

Regulations is concerned which deals with ‘enrolling agency’,

main challenge is on the ground that the work of an enrolment

could not have been given to a private entity as private entity

cannot be entrusted with the crucial task of explaining the nature

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 411 of 567

of Aadhaar enrolment and securing informed consent. Further,

the task of collection of sensitive personal biometric and

demographic data and information for the purpose of storage

cannot be given to private hands. However, having regard to the

nature of process that has been explained by the Authority, which

ensures that immediately on enrolment, the concerned data

collected by the private entity is beyond its control; it gets

encrypted; and stands transmitted to CIDR, we do not find any

basis of the apprehension expressed by the petitioners.

335) Insofar as
Section 2(v)
is concerned which defines resident, there

is nothing wrong with the definition. The grievance of the

petitioners is that the Aadhaar Act creates no credible machinery

for availing a claim that a person has been residing in India for

182 days or more. Apprehension is expressed that this

expression may also facilitate the entry of illegal immigrants.

These aspects can be taken care of by the respondents by

providing appropriate mechanism. We direct the respondents to

do the needful in this behalf. However, that would not render the

definition unconstitutional.

336)
Section 3
, by the very language thereof, mentions that it is an

enabling provision which ‘entitles’ every resident to obtain

Aadhaar number. Therefore, it is voluntary in nature. This is so

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 412 of 567

held by Division Bench of this Court in Binoy Viswam in the

following words:

“93. Before proceeding to discuss this argument, one
aspect of the matter needs clarification. There was a
debate as to whether the Aadhaar Act is voluntary or even
that Act makes enrolment under Aadhaar mandatory.

94. First thing that is to be kept in mind is that the Aadhaar
Act is enacted to enable the Government to identify
individuals for delivery of benefits, subsidies and services
under various welfare schemes. This is so mentioned in
Section 7 of the Aadhaar Act which states that proof of
Aadhaar number is necessary for receipt of such subsidies,
benefits and services. At the same time, it cannot be
disputed that once a person enrols himself and obtains
Aadhaar number as mentioned in Section 3 of the Aadhaar
Act, such Aadhaar number can be used for many other
purposes. In fact, this Aadhaar number becomes the
Unique Identity (UID) of that person. Having said that, it is
clear that there is no provision in the Aadhaar Act which
makes enrolment compulsory. May be for the purpose of
obtaining benefits, proof of Aadhaar card is necessary as
per
Section 7
of the Act. The proviso to
Section 7
stipulates
that if an Aadhaar number is not assigned to enable an
individual, he shall be offered alternate and viable means
of identification for delivery of the subsidy, benefit or
service. According to the petitioners, this proviso, which
acknowledges alternate and viable means of identification,
and therefore makes Aadhaar optional and voluntary and
the enrolment is not necessary even for the purpose of
receiving subsidies, benefits and services under various
schemes of the Government. The respondents, however,
interpret the proviso differently and their plea is that the
words “if an Aadhaar number is not assigned to an
individual” deal with only that situation where application
for Aadhaar has been made but for certain reasons
Aadhaar number has not been assigned as it may take
some time to give Aadhaar card. Therefore, this proviso is
only by way of an interim measure till Aadhaar number is
assigned, which is otherwise compulsory for obtaining
certain benefits as stated in Section 7 of the Aadhaar Act.

Fact remains that as per the Government and UIDAI itself,
the requirement of obtaining Aadhaar number is voluntary.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 413 of 567

It has been so claimed by UIDAI on its website and
clarification to this effect has also been issued by UIDAI.

95. Thus, enrolment under Aadhaar is voluntary. However,
it is a moot question as to whether for obtaining benefits as
prescribed under Section 7 of the Aadhaar Act, it is
mandatory to give Aadhaar number or not is a debatable
issue which we are not addressing as this very issue is
squarely raised which is the subject-matter of other writ
petition filed and pending in this Court.”

Therefore, the apprehension of the petitioners that
Section
is mandatory stands assuaged.

337)
Section 5
is a special measure for issuance of Aadhaar number

to certain category of persons which attempts to take care of

certain disabilities with which certain individuals may be suffering.

Therefore, this provision is for the benefit of the categories of

persons mentioned in
Section 5
. No doubt, it mentions children

and persons with disabilities as well, that is an aspect is already

dealt with separately.

338)
Section 6
deals only with the updation of demographic and

biometric information. This may become necessary under certain

circumstances. That by itself does not take away the voluntary

nature of the programme.

339) Insofar
Section 9
is concerned, validity thereof is challenged

primarily on the ground that it serves as a proof of citizenship and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 414 of 567

domicile as well and some apprehensions are expressed on that

basis. Such apprehensions have already been taken care of

while discussing the issue no. 1 pertaining to surveillance.

340) We have already discussed in detail the purpose of constituting

the Authority. In fact, the Act cannot operate without such an

Authority and, therefore, it’s constitution is imperative. Challenge

to validity of
Sections 11
to
is predicated on the arguments of

surveillance etc. fails, having regard to our detailed discussion on

the said aspect.

341)
Section 23
read with
Section 54
give power to the Authority to

make certain Regulations. We do not find that this provision

gives excessive delegation to the Authority. These aspects have

already been discussed while determining the issue pertaining to

surveillance.

342) Apprehension expressed qua
Section 29
are equally unfounded.

This Section rather imposes restrictions on sharing information.

No doubt, sub-section (2) states that the identity information (and

specifically excludes core biometric information) can be shared

only in accordance with the provisions of the Act and in such a

manner as may be specified by Regulations. That would not

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 415 of 567

make the provision unconstitutional when it is with the consent of

the individual. In case, any regulation is made which permits

sharing of information that may contain undesirable

circumstance/reason for sharing information, such a regulation

can always be struck down. Insofar as sub-section (4) is

concerned, it is generally in favour of the residents/individuals

inasmuch as it states that information collected or created under

this Act shall not be published, displayed or posted publicly. The

is grievance, however, is that this provision enables the Authority

to publish or display etc. such an information ‘for the purposes as

may be specified by regulations’. The apprehension is that under

this provision, the Government can always make regulations

permitting publication of such information under certain

circumstances. At present, regulations which are in force are the

Aadhaar (Sharing of Information) Regulations, 2016. Chapter II

thereof is titled ‘restriction on sharing of identity information’.

Regulation 3(1)
which falls under this chapter puts a categorical

ban on sharing of core biometric information collected by the

Authority under the Act, by mandating that it shall not be sharing

with anyone for any reason whatsoever. Sub-regulation (2) of

Regulation 3
permits sharing of demographic information and

photograph of an individual collected by the Authority under the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 416 of 567

Act, only with the consent of the Aadhaar number holder, that too

for authentication process in accordance with Authentication

Regulations. As already held by us, insofar as utilisation of

subsidies, benefits and services are concerned, the

authentication would be needed by the provider of such services

which would be the requesting entity and this provision has

already been upheld. Sub-regulation (3) permits sharing of

authentication records of Aadhaar number holder with him in

accordance with
Regulation 28
of the Authentication Regulations.

This provision facilitates obtaining the information from the

Authority by the Aadhaar number holder herself. We are, thus, of

the opinion that
Section 29
and the sharing regulations are the

provisions enacted to protect the interest of Aadhaar card holders

as they put restrictions on the sharing of information, which may

be described as provisions pertaining to data protection and

surveying legitimate state aim/interest as well. No doubt,
Section
gives power to the delegatee to make regulations. However,

as already clarified above, as and when a regulation is made,

which impinges upon the privacy right of the Aadhaar card

holders, that can always be challenged. As of now, sharing

regulations do not contain any such provision.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 417 of 567

343)
Section 33
provides for disclosure of information in certain cases.

The challenge to this provision is predicated on the ground that it

provides for the use of Aadhaar database for police verification,

which is against the ethos of
Article 20(3)
of the Constitution of

India, which is a rule against self-incrimination. In order to

appreciate this argument, we would like to reproduce
Section 33

in its entirety:

“33. (1) Nothing contained in sub-section (2) or sub-section
(5) of
section 28
or sub-section (2) of
section 29
shall apply
in respect of any disclosure of information, including
identity information or authentication records, made
pursuant to an order of a court not inferior to that of a
District Judge:

Provided that no order by the court under this sub-
section shall be made without giving an opportunity of
hearing to the Authority.

(2) Nothing contained in sub-section (2) or sub-section (5)
of
section 28
and clause (b) of sub-section (1), sub-section
(2) or sub-section (3) of
section 29
shall apply in respect of
any disclosure of information, including identity information
or authentication records, made in the interest of national
security in pursuance of a direction of an officer not below
the rank of Joint Secretary to the Government of India
specially authorised in this behalf by an order of the Central
Government:

Provided that every direction issued under this sub-
section, shall be reviewed by an Oversight Committee
consisting of the Cabinet Secretary and the Secretaries to
the Government of India in the Department of Legal Affairs
and the Department of Electronics and Information
Technology, before it takes effect:

Provided further that any direction issued under this
sub-section shall be valid for a period of three months from
the date of its issue, which may be extended for a further

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 418 of 567

period of three months after the review by the Oversight
Committee.”

344) A close look at sub-section (1) of
Section 33
would demonstrate

that the sub-section (1) is an exception to
Section 28(2)
,
Section

28(5)
and
Section 29(2)
of the Act. Those provisions put a bar on

the disclosure of an information thereby protecting the information

available with the UIDAI in respect of any person. However, as

per sub-section (1), such information can be disclosed if there is

an order of a court which order is not inferior to that of a District

Judge. This provision, therefore, only states that in suitable

cases, if court passes an order directing an Authority to disclose

such an information, then the Authority would be obliged to do so.

Thus, an embargo contained in
Sections 28
and
is partially

lifted only in the eventuality on passing an order by the court not

inferior to that of District Judge. This itself is a reasonable

safeguard. Obviously, in any proceedings where the Court feels

such an information is necessary for the determination of

controversy that is before the Court, before passing such an

order, it would hear the concerned parties which will include the

person in respect of whom the disclosure of information is sought.

We, therefore, clarify that provisions of sub-section (1) of
Section
by reading into the provisions that an individual whose

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 419 of 567

information is sought to be released shall be afforded an

opportunity of hearing. There is a reasonable presumption that

the said court shall take into consideration relevant law including

Article 20(3)
of the Constitution as well as privacy rights or other

rights of that person before passing such an order. Moreover, a

person in respect of whom order is passed shall also be heard

and will have right to challenge the order in a higher forum. Not

only this, proviso to
Section 33(1)
puts an additional safeguard by

providing that even UIDAI shall be heard before an order is

passed to this effect by the Court. In that sense, the Authority is

to act as trustee and it may object to passing of the order by the

court. Such a happening is actually taken place. We have

already noticed that against the order of the High Court of

Bombay in some criminal proceedings, order was passed

directing the Authority to give biometric information of a person,

the Authority had filed Special Leave Petition (Criminal) No. 2524

of 2014 challenging the said order on the ground that giving of

such biometric information was contrary to the provisions of the

Aadhaar Act as the information was confidential. This Court

stays the operation of the said order which depicts that there are

sufficient safeguards provided in sub-section (1) of
Section 33

itself.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 420 of 567

345) Adverting to sub-section (2) of
Section 33
, it can be seen that this

provision enables disclosure of information including identity

information records in the interest of national security. This

provision further states that the Authority is obliged to disclose

such information in pursuance of a direction of an officer not

below the rank of Joint Secretary to the Government of India

specially authorised in this behalf by an order of the Central

Government. Proviso thereto sub-section (2) puts an additional

safeguard by prescribing that every direction issued under this

sub-section shall be reviewed by an Oversight Committee

consisting of the Cabinet Secretary and the Secretaries to the

Government of India in the Department of Legal Affairs and the

Department of Electronics and Information Technology before it

takes effect. Further, such a direction is valid only for a period of

three months from the date of its issue which can be extended by

another three months.

346) Main contention of the petitioners in challenging the provisions of

sub-section (2) of
Section 33
are that no definition of national

security is provided and, therefore, it is a loose ended provision

susceptible to misuse. It is also argued that there is no

independent oversight disclosure of such data on the ground of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 421 of 567

security and also that the provision is unreasonable and

disproportionate and, therefore, unconstitutional.

347) We may point out that this Court has held in Ex-Armymen’s

Protection Services Private Limited v. Union of India & Ors.110
that

what is in the interest of national security is not a question of law

but it is a matter of policy. We would like to reproduce following

discussion therefrom:

“16. What is in the interest of national security is not a
question of law. It is a matter of policy. It is not for the court
to decide whether something is in the interest of the State
or not. It should be left to the executive. To quote Lord
Hoffman in Secy. of State for Home Deptt. v. Rehman
[(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122
(HL)] : (AC p. 192C)

“… [in the matter] of national security is not a
question of law. It is a matter of judgment and policy.

Under the Constitution of the United Kingdom and
most other countries, decisions as to whether
something is or is not in the interests of national
security are not a matter for judicial decision. They
are entrusted to the executive.”

17. Thus, in a situation of national security, a party cannot
insist for the strict observance of the principles of natural
justice. In such cases, it is the duty of the court to read into
and provide for statutory exclusion, if not expressly
provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the
court to satisfy itself whether there were justifiable facts,
and in that regard, the court is entitled to call for the files
and see whether it is a case where the interest of national
security is involved. Once the State is of the stand that the
issue involves national security, the court shall not disclose
the reasons to the affected party.”

110 (2014) 5 SCC 409

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 422 of 567

348) Even in K.S. Puttaswamy, this Court has recognised data

retention by the Government which may be necessitated in the

public interest and in the interest of national security. We may

also usefully refer to the judgment of People’s Union for
Civil

Liberties (PUCL) v. Union of India & Anr.111
. In that case, action

of telephone tapping was challenged as serious invasion of

individual’s privacy. The Court found that
Section 5(2)
of the

Telegraph Act, 1885 permits the interception of messages in

circumstances mentioned therein i.e. ‘occurrence of any public

emergency’ or ‘in the interest of public safety’. The Court

explained these expressions in the following manner:

“28.
Section 5(2)
of the Act permits the interception of
messages in accordance with the provisions of the said
section. “Occurrence of any public emergency” or “in the
interest of public safety” are the sine qua non for the
application of the provisions of
Section 5(2)
of the Act.
Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction
to exercise the powers under the said section. Public
emergency would mean the prevailing of a sudden
condition or state of affairs affecting the people at large
calling for immediate action. The expression “public safety”
means the state or condition of freedom from danger or risk
for the people at large. When either of these two conditions
are not in existence, the Central Government or a State
Government or the authorised officer cannot resort to
telephone-tapping even though there is satisfaction that it
is necessary or expedient so to do in the interests of
sovereignty and integrity of India etc. In other words, even
if the Central Government is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty and
integrity of India or the security of the State or friendly
relations with sovereign States or public order or for

111 (1997) 1 SCC 301

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 423 of 567

preventing incitement to the commission of an offence, it
cannot intercept the messages or resort to telephone-
tapping unless a public emergency has occurred or the
interest of public safety or the existence of the interest of
public safety requires. Neither the occurrence of public
emergency nor the interest of public safety are secretive
conditions or situations. Either of the situations would be
apparent to a reasonable person.”

349) Having regard to the aforesaid legal position, disclosure of

information in the interest of national security cannot be faulted

with. However, we are of the opinion that giving of such

important power in the hands of Joint Secretary may not be

appropriate. There has to be a higher ranking officer along with,

preferably, a Judicial Officer. The provisions contained in
Section

33(2)
of the Act to the extent it gives power to Joint Secretary is,

therefore, struck down giving liberty to the respondents to suitably

enact a provision on the aforesaid lines, which would adequately

protect the interest of individuals.

350) We now advert to the challenge laid to Section 47 of the Aadhaar

Act, which is captioned as ‘cognizance of offences’, it reads as

under:

“47. (1) No court shall take cognizance of any offence
punishable under this Act, save on a complaint made by
the Authority or any officer or person authorised by it.

(2) No court inferior to that of a Chief Metropolitan
Magistrate or a Chief Judicial Magistrate shall try any
offence punishable under this Act.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 424 of 567

351) Certain acts in Chapter VII are treated as offences and penalties

are also provided, from
Section 34
to
Section 43
.

352)
Section 44
clarifies that this Act would apply for offence or

contravention committed even outside India. Insofar as

investigation of these offences is concerned,
Section 45
provides

that a police officer not below the rank of Inspector of Police shall

investigate any offence under this Act.
Section 46
, thereafter,

clarifies that penalties imposed under this Act shall not prevent

the imposition of any other penalty or punishment under any

other law for the time being in force. This scheme of Chapter VII

makes very strict provisions in respect of enforcement of the Act

which includes data protection as well. Last provision in Chapter

VII is
Section 47
which provides that the cognizance would be

taken only on a complaint made by the Authority or any officer or

person authorised by it. Petitioners feel aggrieved by this

provision as it does not permit an individual citizen whose rights

are violated, to initiate the criminal process. Apprehensions are

expressed by submitting that there may be a possibility where the

Authority itself or some Governmental Authority may be guilty of

committing the offences under the Act and, in such a situation,

the Authority or any officer or person authorised by it may choose

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 425 of 567

not to file any complaint.

353) According to the respondents, the rationale behind
Section 47
is

to maintain purity and integrity of CIDR and the entire enrolment

storage in the CIDR and authentication exercise can be handled

only by the Authority. For this reason, it is the Authority which is

empowered to lodge the complaint. It is also pointed out that

similar provisions akin to Section 47 of the Aadhaar Act are

contained in many other statutes. Reference is made to
Section
of the Mines and Minerals (Development and Regulation) Act,

1957,
Section 34
of the Bureau of Indian Standards Act, 1986,

Section 34
of the Telecom Regulatory Authority of India Act, 1997,

Section 47
of the Banking Regulation Act, 1949,
Section 26(1)
of

the Securities and Exchange Board of India Act, 1992,
Section 19

of the Environment (Protection) Act, 1986,
Section 43
of the Air

(Prevention and Control of Pollution) Act, 1981 and
Section 57(1)

of the Petroleum and Natural Gas Regulatory Board Act, 2006.

The respondents have also submitted that validity of such

provisions have been tested and affirmed by this Court.

Reference is made to the judgment in
Raj Kumar Gupta v. Lt.

Governor, Delhi & Ors.112
. The respondents have also taken

support of the decision of this Court in State (NCT of Delhi) v.

112(1997) 1 SCC 556

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 426 of 567

Sanjay113 wherein
Section 22
of the Mines and Minerals

(Development and Regulation) Act, 1957 was tested. Insofar as

grievance and apprehension of the petitioners is concerned, it

can be taken care on interpreting the provisions by holding that

the Authority can lodge a complaint of its own motion or at the

request of the individual whose rights are affected thereby.

Notwithstanding the above, we are of the opinion that it

would be in the fitness of things if
Section 47
is amended by

allowing individual/victim whose right is violated, to file a

complaint and initiate the proceedings. We hope that this aspect

shall be addressed at the appropriate level and if considered fit,

Section 47
would be suitably amended.

354)
Section 48
cannot be treated as vague or arbitrary. ‘Public

Emergency’ is the expression which has been used in several

other enactments and held to be constitutional. It can always be

subject to scrutiny of the Courts.

355) With this, now we come to a provision which was highly debated.

At the time of arguments, the petitioners had taken strong

exception to some of its aspects. We may first take note of the

exact language of this provision:

113(2014) 9 SCC 772

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 427 of 567

“57. Nothing contained in this Act shall prevent the use of
Aadhaar number for establishing the identity of an
individual for any purpose, whether by the State or any
body corporate or person, pursuant to any law, for the time
being in force, or any contract to this effect: Provided that
the use of Aadhaar number under this section shall be
subject to the procedure and obligations under
section 8

and Chapter VI.”

356) In first blush, the provision appears to be innocuous. It enables

Aadhaar holder to establish her identity for any purpose as well.

In that sense, it may amount to empowering the Aadhaar number

holder, when she is carrying unique identity. It is her identity card

which she is able to use not only for the purposes mentioned in

the Aadhaar Act but also for any other purpose.

357) The petitioners, however, have pricked the provision with the

submission that it may be susceptible to making deep in-roads in

the privacy of individuals and is utterly disproportionate. The taint

in the provision, as projected by the petitioners, is that it brings in

private parties as well, apart from the State within the fold of

Aadhaar network giving untrammeled opportunity to them to

invade the privacy of such user. The offending portion of the

provision, according to them, is that:

(a) It allows ‘any body corporate or person’ (thereby

encompassing private bodies/persons as well) to make use of

authentication process, once an individual offers Aadhaar number

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 428 of 567

for establishing her identity.

(b) The expression ‘for any purpose’ is wide enough, which

may be susceptible to misuse.

(c) This is permitted not only pursuant to any law for time being

in force but also pursuant to ‘any contract to this effect’ which

would mean that individuals may be forced to give their consent

in the form of contract for a purpose that may be justified or not

thereby permitting the private parties to collect biometric

information about the said individual.

358) It is argued that there are no procedural safeguards governing

the actions of the private entities. Equally no remedy is provided

in case such body corporate or person fails or denies services. In

this hue, it is also argued that it is an excessive piece of

legislation inasmuch as taking the umbrage of ‘any law’, the

regulations etc. can be framed by including within its fold much

more than what is provided by Section 7 of the Aadhaar Act. It,

therefore, according to the petitioners, does not meet the test of

proportionality. Mr. Divan submits that
Section 57
is also patently

unconstitutional inasmuch as it allows an unrestricted extension

of the Aadhaar platform to users who may be government

agencies or private sector operators. Moreover, this provision

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 429 of 567

enables the seeding of the Aadhaar number across service

providers and other gateways and thereby enables the

establishment of a surveillance state. The impugned provision

enables the spread of applications and Aadhaar dependent

delivery systems that are provided not from Consolidated Fund of

India resources but through any other means. He also submits

that
section 57
also enables commercial exploitation of an

individual’s biometrics and demographic information by the

Respondents as well as private entities.

359) As mentioned above, the respondents contend that it is only an

enabling provision which gives further facilities to Aadhaar card

holder, as per her choice and is, thus, enacted for the benefit of

such individuals.

360) We have already discussed in detail the principles on which

doctrine of proportionality is built upon and the test which need to

be satisfied. To put in nutshell, the proportionality principles seek

to safeguard citizens from excessive Government measures. The

inquiry, in such cases, is that a particular measure must not be

disproportionate in two distinctive utilitarian senses:

(i) The cost or burdens of the measure must not clearly exceed

the likely benefits, which can be described as ‘ends’ or ‘ends-

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 430 of 567

benefits’ proportionality.

(ii) The measure must not be clearly more costly or more

burdensome than equally alternative measures, which is also

described by some jurists as a concept of necessity and narrow

tailoring and can be referred to as ‘means’ or ‘alternative-means’

proportionality.

361) We have also discussed in detail the principle of proportionality

that is developed in certain foreign legal regimes, particularly

Germany and Canada. The Supreme Court of Canada in R. v.

Oakes114 developed a two-tier constitutional control test. Once

the claimant has proved a violation of a right guaranteed in the

charter, the government must satisfy two criteria to establish that

the limit on individual rights “can be demonstrably justified in a

free and democratic society.”

362) First, measures limiting a constitutionally protected right must

serve an important objective that “relate[s] to concerns which are

pressing and substantial in a free and democratic society.”

Legislation limiting the rights of English-speaking parents in

Quebec to educate their children in English-speaking schools 115

has been found lacking an important public objective. Likewise,

114(1986) 1 SCR 103
115Quebec Ass’n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 431 of 567

the Supreme Court of Canada was unable to find any legitimate

public objective that justified denying protection to gays and

lesbians under Alberta’s human rights law in Vriend v. Alberta116.

In R. v. Zundel117, it also prohibited an intrusive use of a law that

was unrelated to the objectives originally contemplated by the

Parliament when that law was enacted.

363) Secondly, once an important public objective or end has been

established, the selected means to attain it must be “reasonable

and demonstrably justified.” The Court said in
R. v. Big M Drug

Mart Ltd.118
that this determination involves “a form of

proportionality test”. Although, it varies depending on the facts of

the case, the test involves the balancing of public and individual

interests based on three principles, which are as follows:

(i) the means must be rationally related to the objective. The

court has infrequently struck down legislation for lack of any

rational relation to the objective pursued. It employs a rather

deferential and contextual approach to determine the rational

relation of a provision to the desired end.

(ii) The means should “impair ‘as little as possible’ the right or

freedom in question.” This is believe to be the decisive element

116(1998) 1 SCR 493
117(1992) 2 SCR 731
118 (1985) 1 SCR 295

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 432 of 567

of proportionality review. It requires that the legislature adopt the

least intrusive measure capable of attaining the desired objective.

(iii) The public objective and actual effects of the means

adopted for its attainment must be proportionate to an important

public end or objective. The court noted that even if the means

satisfies the first two criteria, it may be declared unconstitutional

in view of its disproportionate harmful effects on an individual.

364) Insofar as development of law in Germany is concerned, as

already discussed in detail, proportionality is defined “as an

expression of general right of the citizen towards the State that

his freedom should be limited by the public authorities only to the

extent indispensable for the protection of the public interest.” 119

The principle of proportionality in German law incorporates three

important subprinciples: suitability, necessity, and proportionality

in the narrower sense. According to the High Court of Germany,

any government interference with basic rights must be suitable

and necessary for reaching the ends sought. Its disadvantages to

individuals “are generally only permissible if the protection of

others or of the public interest requires them, after having due

regard to the principle of proportionality.”

119 See Nicholas Emiliou, The Principle of Proportionality in European Law: A comparative Study 5
(Kluwer Law Int’l. 1996).

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 433 of 567

365) The European Union has, by and large, adopted the German

system. We have also taken note of the development of doctrine

of proportionality in India through various judgments120.

366) We may mention here that insofar as U.S. Supreme Court is

concerned, it has refused to apply the least intrusive test 121

Though there was a debate at the bar as to whether this Court

should adopt European approach of applying least intrusive test

or go by American approach which repeatedly refused to apply

this test. Without going into this debate, even when we apply the

accepted norms
laid down by
this Court in Modern Dental

College and Research Centre and K.S. Puttaswamy cases, we

are of the view that a part of
Section 57
does not pass the muster

of proportionality doctrine.

367) The respondents may be right in their explanation that it is only

an enabling provision which entitles Aadhaar number holder to

take the help of Aadhaar for the purpose of establishing his/her

identity. If such a person voluntary wants to offer Aadhaar card

as a proof of his/her identity, there may not be a problem.
Om Kumar & Ors. v. Union of India
, (2001) 2 SCC 386 where R. v. Oakes was referred to and
relied upon;
Teri Oat Estates (P) Ltd. v. U.T., Chandigarh & Ors.
, (2004) 2 SCC 130 where the
Court stressed upon maintaining a proper balance between adverse effect which the legislation
or the administrative order may have on the rights, liberties or interests of persons keeping in
mind the purpose which they were intended to serve; Modern Dental College and Research
Centre and K.S. Puttaswamy amongst others.

121 Vernonia School District v. Wayne Acton, 515 US 646, 132 L.Ed. 2D 564, Board of Education of
Independent School District v. Lindsay Earls, 536 US 822=153 L.Ed.2d. 735.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 434 of 567

368)
Section 59
, which is the last provision in the Act is aimed at

validating actions taken by the Central Government pursuant to

notification dated January 28, 2009 till the passing of the Act. It

reads as under:

“59. Anything done or any action taken by the Central
Government under the Resolution of the Government of
India, Planning Commission bearing notification number A-
43011/02/2009-Admin. I, dated the 28th January, 2009, or
by the Department of Electronics and Information
Technology under the Cabinet Secretariat Notification
bearing notification number S.O. 2492(E), dated the 12th
September, 2015, as the case may be, shall be deemed to
have been validly done or taken under this Act.”

369) The challenge to this provision is on the premise that in the

regime which prevailed prior to the passing of the Act and the

enrolments into Aadhaar scheme were done, that happened

without the consent of the persons who sought enrolment and,

therefore, those enrolments cannot be validated by making such

a provision. It was argued that even the Act makes provisions for

informed consent which is to be obtained from individuals at the

time of enrolment and absence of such consent makes the very

enrolment as impermissible thereby violating the right to privacy

and such acts cannot be validated.

370) The contention of the respondents, on the other hand, is that by

the very nature of the provision, it is intended to be prospective in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 435 of 567

nature with a clear purport in mind, namely, to validate the

notification dated August 21, 2009 vide which the Authority was

created and the Aadhaar scheme was launched by

administrative fiat. The purpose is to give it a statutory backing.

371) We find that
Section 59
uses the expression ‘anything done or

any action under the resolution’. According to us, this

terminology used in the provision by the legislature is clearly to

cover all actions of the Authority including enrolment of

individuals into Aadhaar scheme. The words ‘shall be deemed to

have been validly done or taken under this Act’ at the end of the

Section put the things beyond any pale of doubt. The legislative

intent is clear, namely, to make the provision retrospective so as

to cover the actions of the Authority from the date of its

establishment. Reading the provision in the manner the

petitioners suggest would have the effect of annulling
Section 59

itself. Such an interpretation cannot be countenanced. We are of

the opinion that case is squarely covered by the Constitution

Bench judgment of this Court in
West Ramnad Electric

Distribution Co., Ltd. v. State of Madras & Anr.122as
well as

Bishambhar Nath Kohli & Ors. v. State of Uttar Pradesh & Ors.123
.

122 (1963) 2 SCR 747
123 (1966) 2 SCR 158

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 436 of 567

372) We would also like to point out that the submission of the

petitioners that a particular action or a provision or statute which

is hit by
Article 14
cannot be allowed to be validated is repelled by

this Court in
State of Mysore & Anr. v. D. Achiah Chetty, Etc.124
.

The legislature is, thus, empowered to incorporate deeming

provisions in a statute. This proposition has also been repeatedly

affirmed by this Court. We may refer in this behalf the decision in

State of Karnataka v. State of Tamil Nadu & Ors.
125 will be of

relevance wherein the Court held as under:

“72. The second limb of submission of Mr Rohatgi as
regards the maintainability pertains to the language
employed under
Section 6(2)
of the 1956 Act, which reads
as follows:

“6. (2) The decision of the Tribunal, after its
publication in the Official Gazette by the Central
Government under sub-section (1), shall have the
same force as an order or decree of the Supreme
Court.”

73. Relying on
Section 6(2)
, which was introduced by way
of the
Amendment Act, 2002
(Act 14 of 2002) that came
into force from 6-8-2002, it is submitted by Mr Rohatgi that
the jurisdiction of this Court is ousted as it cannot sit over in
appeal on its own decree. The said submission is seriously
resisted by Mr Nariman and Mr Naphade, learned Senior
Counsel contending that the said provision, if it is to be
interpreted to exclude the jurisdiction of the Supreme Court
of India, it has to be supported by a constitutional
amendment adding at the end of
Article 136(2)
the words
“or to any determination of any tribunal constituted under
the law made by Parliament under
Article 262(2)
” and, in
such a situation, in all possibility such an amendment to the
Constitution may be ultra vires affecting the power of

124(1969) 1 SCC 248
125(2017) 3 SCC 362

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 437 of 567

judicial review which is a part of basic feature of the
Constitution. The learned Senior Counsel for the
respondent has drawn a distinction between the
conferment and the exclusion of the power of the Supreme
Court of India by the original Constitution and any
exclusion by the constitutional amendment. Be that as it
may, the said aspect need not be adverted to, as we are
only required to interpret
Section 6(2)
as it exists today on
the statute book. The said provision has been inserted to
provide teeth to the decision of the Tribunal after its
publication in the Official Gazette by the Central
Government and this has been done keeping in view the
Sarkaria Commission's Report on Centre-State Relations
(1980). The relevant extract of the Sarkaria Commission's
Report reads as follows:

“17.4.19.
The Act
was amended in 1980 and Section
6-A was inserted. This section provides for framing a
scheme for giving effect to a Tribunal's award. The
scheme, inter alia provides for the establishment of
the authority, its term of office and other conditions of
service, etc. But the mere creation of such an agency
will not be able to ensure implementation of a
Tribunal's award. Any agency set up under Section 6-
A cannot really function without the cooperation of the
States concerned. Further, to make a Tribunal's
award binding and effectively enforceable, it should
have the same force and sanction behind it as an
order or decree of the Supreme Court. We
recommend that the Act should be suitably amended
for this purpose.

***

17.6.05.
The Inter-State Water Disputes Act, 1956

should be amended so that a Tribunal's award has
the same force and sanction behind it as an order or
decree of the Supreme Court to make a Tribunal's
award really binding.”

74. The Report of the Commission as the language would
suggest, was to make the final decision of the Tribunal
binding on both the States and once it is treated as a
decree of this Court, then it has the binding effect. It was
suggested to make the award effectively enforceable. The
language employed in
Section 6(2)
suggests that the
decision of the Tribunal shall have the same force as the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 438 of 567

order or decree of this Court. There is a distinction between
having the same force as an order or decree of this Court
and passing of a decree by this Court after due
adjudication. Parliament has intentionally used the words
from which it can be construed that a legal fiction is meant
to serve the purpose for which the fiction has been created
and not intended to travel beyond it. The purpose is to
have the binding effect of the Tribunal's award and the
effectiveness of enforceability. Thus, it has to be narrowly
construed regard being had to the purpose it is meant to
serve.

75. In this context, we may usefully refer to the Principles
of Statutory Interpretation, 14th Edn. by G.P. Singh. The
learned author has expressed thus:

“In interpreting a provision creating a legal fiction, the
court is to ascertain for what purpose the fiction is
created [
State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory
, AIR 1953 SC 333;
State of
Bombay v. Pandurang Vinayak
, AIR 1953 SC 244 :
1953 Cri LJ 1094] , and after ascertaining this, the
Court is to assume all those facts and consequences
which are incidental or inevitable corollaries to the
giving effect to the fiction.

[East End Dwellings Co.
Ltd.v. Finsbury Borough Council, 1952 AC 109 :
(1951) 2 All ER 587 (HL);
CIT v. S. Teja Singh
, AIR
1959 SC 352] But in so construing the fiction it is not
to be extended beyond the purpose for which it is
created [
Bengal Immunity Co. Ltd. v. State of Bihar
,
AIR 1955 SC 661;
CIT v. Amarchand N. Shroff
, AIR
1963 SC 1448], or beyond the language of the
section by which it is created.
[CIT v. Shakuntala, AIR
1966 SC 719; Mancheri Puthusseri Ahmed v.

Kuthiravattam Estate Receiver, (1996) 6 SCC 185 :

AIR 1997 SC 208] It cannot also be extended by
importing another fiction. [
CIT v. Moon Mills Ltd.
, AIR
1966 SC 870] The principles stated above are ‘well-
settled’.

[
State of W.B. v. Sadan K. Bormal
, (2004) 6
SCC 59 : 2004 SCC (Cri) 1739 : AIR 2004 SC 3666]
A legal fiction may also be interpreted narrowly to
make the statute workable.

[
Nandkishore Ganesh
Joshi v. Commr., Municipal Corpn. of Kalyan and
Dombivali
, (2004) 11 SCC 417 : AIR 2005 SC 34] ”

76.
In
Aneeta Hada v. Godfather Travels
and
Tours
[Aneeta Hada v. Godfather Travels and Tours
, (2012) 5

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 439 of 567

SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri)
241] , a three-Judge Bench has ruled thus: (SCC p. 681,
paras 37-38)

“37.

In
State of T.N. v. Arooran Sugars Ltd. [State of
T.N.
v. Arooran Sugars Ltd., (1997) 1 SCC 326] the
Constitution Bench, while dealing with the deeming
provision in a statute, ruled that the role of a provision
in a statute creating legal fiction is well settled.

Reference was made to
Chief Inspector of Mines v.
Karam Chand Thapar [Chief Inspector of Mines
v.
Karam Chand Thapar, AIR 1961 SC 838 : (1961) 2
Cri LJ 1], J.K. Cotton Spg. and Wvg. Mills Ltd. v.
Union of India[J.K. Cotton Spg. and
Wvg. Mills Ltd. v.
Union of India
, 1987 Supp SCC 350 : 1988 SCC (Tax)
26], M. Venugopal v. LIC [M. Venugopal v. LIC, (1994)
2 SCC 323 : 1994 SCC (L&S) 664] and Harish
Tandon v. ADM, Allahabad [Harish Tandon v. ADM,
Allahabad, (1995) 1 SCC 537] and eventually, it was
held that when a statute creates a legal fiction saying
that something shall be deemed to have been done
which in fact and truth has not been done, the Court
has to examine and ascertain as to for what purpose
and between which persons such a statutory fiction is
to be resorted to and thereafter, the courts have to
give full effect to such a statutory fiction and it has to
be carried to its logical conclusion.

38. From the aforesaid pronouncements, the principle
that can be culled out is that it is the bounden duty of
the court to ascertain for what purpose the legal
fiction has been created. It is also the duty of the
court to imagine the fiction with all real consequences
and instances unless prohibited from doing so. That
apart, the use of the term “deemed” has to be read in
its context and further, the fullest logical purpose and
import are to be understood. It is because in modern
legislation, the term “deemed” has been used for
manifold purposes. The object of the legislature has
to be kept in mind.”

77.
In
Hari Ram [State of U.P. v. Hari Ram
, (2013) 4 SCC
280 : (2013) 2 SCC (Civ) 583] , the Court has held that
(SCC p. 293, para 18) in interpreting the provision creating
a legal fiction, the court is to ascertain for what purpose the
fiction is created and after ascertaining the same, the court
is to assume all those facts and consequences which are

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 440 of 567

incidental or inevitable corollaries for giving effect to the
fiction.”

373) There is yet another angle from which the matter can be looked

into. In any case, when the Aadhaar scheme/project under the

Act has been saved from the challenge to its constitutionality, we

see no reason to invalidate the enrolments which were made

prior to the passing of this Act as it would lead to unnecessary

burden and exercise of enrolling these persons all over again.

Instead the problem can be solved by eliciting ‘consent’ of all

those persons who were enrolled prior to the passing of the Act.

Since, we have held that enrolment is voluntary in nature, those

who specifically refuse to give the consent, they would be allowed

to exit from Aadhaar scheme. After all, by getting Aadhaar card,

an individual so enrolled is getting a form of identity card. It

would still be open to such an individual to make use of the said

Aadhaar number or not. Those persons who need to avail any

subsidy, benefit or service would need Aadhaar in any case. It

would not be proper to cancel their Aadhaar cards. If direction is

given to invalidate all those enrolments which were made prior to

2016 then such persons will have to undergo the rigours of

getting themselves enrolled all over again. On the other hand,

those who do not get any benefit of the nature prescribed under

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 441 of 567

Section 7
of the Act, it would always be open for them not to

make use of Aadhaar card or to make use of this card in a limited

sense, namely, showing it as a proof of their identity, without

undergoing any authentication process. Therefore, to a large

extent, it does not harm this later category as well.

We, thus, uphold the validity of
Section 59
. As a corollary,

Aadhaar for the period from 2009 to 2016 also stands validated.

LIMITED GOVERNMENT, GOOD GOVERNANCE,
CONSTITUTIONAL TRUST AND CONSTITUTIONALISM

374) Mr. Shyam Divan and Mr. Gopal Subramanium, learned senior

counsel, submit that a fundamental feature of the Constitution is

the sovereignty of the people with limited government authority.

The Constitution limits governmental authority in various ways,

amongst them Fundamental Rights, the distribution of powers

amongst organs of the state and the ultimate check by way of

judicial review.
Article 245
of the Constitution of India is an

express embodiment of the principle of limited government to the

legislature inasmuch as it subjects laws to the Constitution:

“(1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the
territory of India, and the Legislature of a State may make
laws for the whole or any part of the State.”

375) The concept of limited government is the underlying difference

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 442 of 567

between a ‘Constitution’ and ‘Constitutionalism’. Mr. Shyam Divan

refers to the introductory chapter of his book Indian Constitutional

Law, Prof. M.P. Jain writes:

“Modern political thought draws a distinction between
‘Constitutionalism’ and ‘Constitution’. A country may have
the ‘Constitution’ but not necessary ‘Constitutionalism’. For
example, a country with a dictatorship, where the dictator’s
word is law, can be said to have a ‘Constitution’ but not
‘Constitutionalism’.

The underlying difference between the two concepts is that
a Constitution ought not merely to confer powers on the
various organs of the government, but also seek to restrain
those powers. Constitutionalism recognises the need for
government but insists upon limitations being placed upon
governmental powers. Constitutionalism envisages checks
and balances and putting the powers of the legislature and
the executive under some restraints and not making them
uncontrolled and arbitrary. Unlimited powers jeopardise
freedom of the people ... If the Constitution confers
unrestrained power on either the legislature or the
executive, it might lead to an authoritarian, oppressive
government... to preserve the basic freedoms of the
individual, and to maintain his dignity and personality, the
Constitution should be permeated with ‘Constitutionalism’:
it should have some in-built restrictions on the powers
conferred by it on governmental organs.

‘Constitutionalism’ connotes in essence limited government
or a limitation on government. Constitutionalism is the
antithesis of arbitrary powers…

... As PROFESSOR VILE has remarked: “Western
institutional theorists have concerned themselves with the
problems of ensuring that the exercise of governmental
power...should be controlled in order that it should not itself
be destructive of the values it was intended to promote.”

376) Mr. Divan then cited various paragraphs from the cases of State

of M.P. v. Thakur Bharat Singh126, (1967) 2 SCR 454, Gobind v.

126(1967) 2 SCR 454

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 443 of 567

State of M.P.127, S.P. Sampath Kumar v. Union of India128, Sub-

Committee on
Judicial Accountability v. Union of India129
,
I.R.

Coelho v. State of T.N.130
,
Nandini Sundar v. State of

Chhattisgarh131
, which have reiterated and upheld the principle of

limited governments and constitutionalism as a fundamental

principle of our constitutional scheme.

377) He submitted that limited government is also enshrined within our

Preamble, which is the essence of the Constitution of India, and

entitles every individual citizen and the citizenry collectively to

live, work, and enjoy their varied lives without being under the

continuous gaze of the State. He cites Chelameswar, J. in K.S.

Puttaswamy wherein he observed:

“The Constitution of any country reflects the aspirations
and goals of the people of that country (…) The
Constitution cannot be seen as a document written in ink to
replace one legal regime by another. It is a testament
created for securing the goals professed in the Preamble.
Part-III of the Constitution is incorporated to ensure
achievement of the objects contained in the Preamble. ‘We
the People’ of this country are the intended beneficiaries of
the Constitution. Man is not a creature of the State. Life
and liberty are not granted by the Constitution. Constitution
only stipulates the limitations on the power of the State to
interfere with our life and liberty. Law is essential to enjoy
the fruits of liberty; it is not the source of liberty and
emphatically not the exclusive source.”

127(1975) 2 SCC 148
128(1987) 1 SCC 124
129(1991) 4 SCC 699
130(2007) 2 SCC 1
131 (2011) 7 SCC 547

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 444 of 567

378) The Directive Principles of State Policy also envisage a limited

government. Violation of fundamental rights cannot be justified by

the State on grounds of administrative convenience in meeting its

obligations under the Directive Principles of State Policy.

Protection of fundamental rights is essential for public welfare

contemplated under the Directive Principles of State Policy. This

has been upheld in various cases such as
Minerva Mills Ltd. v.

Union of India132
, where Y.V. Chandrachud, C.J observed:

“57. (…) just as the rights conferred by Part III would be
without a radar and a compass if they were not geared to
an ideal, in the same manner the attainment of the ideals
set out in Part IV would become a pretence for tyranny if
the price to be paid for achieving that ideal is human
freedoms.”

379) Similarly, in Kesavananda Bharati v. State of Kerala133, S.M. Sikri,

C.J., inter alia, held:

“209. ...In my view that meaning would be appropriate
which would enable the country to achieve a social and
economic revolution without destroying the democratic
structure of the Constitution and the basic inalienable rights
guaranteed in Part III and without going outside the
contours delineated in the Preamble.

xx xx xx

299. I am unable to hold that these provisions show that
some rights are not natural or inalienable rights. As a
matter of fact, India was a party to the Universal
Declaration of Rights which I have already referred to and
that Declaration describes some fundamental rights as

132 (1980) 3 SCC 625
133 (1973) 4 SCC 225

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 445 of 567

inalienable. Various decisions of this Court describe
fundamental rights as ‘natural rights’ or ‘human rights’ ...”

380) Mr. Divan quotes Seervai in his book Constitutional Law of

India134: A Critical Commentary where he writes:

“17.14... In India “Public Welfare” and “Welfare State”
became in the language of the Chaldean Oracle, “God-
given names of unexplained power”, which absolved
judges from a critical examination of the nature of
fundamental rights, and why they were made legally
enforceable and the nature of directive principles and why
they were made legally unenforceable

xx xx xx

17.20...it is simply not true that persons entrusted with the
duty of implementing the directives will strive in good faith
to implement them according to the expectations of the
community.

xx xx xx

The question then arises: What is the agency for bringing
about social and economic changes which would enable a
welfare state to be created? The answer is, legislative and
executive power controlled by constitutional limitations
including fundamental rights …

xx xx xx

17.30 ... the conferment of legally enforceable fundamental
rights by our Constitution on persons, citizens and groups
of persons was the most effective way of securing public
welfare...Anything which enables those objectives to be
realised as fully as is practicable must, broadly speaking,
subserve public welfare...However, the Preamble, and to a
large extent, Fundamental Rights, enable us to say that our
Constitution has rejected a totalitarian form of government
in favour of a liberal democracy. The emphasis of the
Preamble is on securing the dignity of the individual …
H.M. Seervai, Constitutional Law of India: A Critical Commentary (N.M. Tripathi Private
Limited, Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 446 of 567

xx xx xx

17.34 But can fundamental rights acting as limitations on
legislative and executive power secure public welfare as
the framers of our Constitution intended? The answer is
“Yes”. For, when during the Emergency of 1975-77, almost
all the fetters on legislative power became unenforceable,
the public welfare suffered gravely and our free democratic
constitution was twisted out of shape and came near to a
dictatorship or a Police State ...”

381) The principles of constitutional trust, constitutional morality and

good governance are also deeply intertwined with the principle of

minimum government.
In
Manoj Narula v. Union of India135
, the

Court, inter alia, held:

“1. … Democracy, which has been best defined as the
government of the people, by the people and for the
people, expects prevalence of genuine orderliness, positive
propriety, dedicated discipline and sanguine sanctity by
constant affirmance of constitutional morality which is the
pillar stone of good governance.

xx xx xx

75. The principle of constitutional morality basically means
to bow down to the norms of the Constitution and not to act
in a manner which would become violative of the rule of
law or reflectible of action in an arbitrary manner. It actually
works at the fulcrum and guides as a laser beam in
institution building. The traditions and conventions have to
grow to sustain the value of such a morality. The
democratic values survive and become successful where
the people at large and the persons in charge of the
institution are strictly guided by the constitutional
parameters without paving the path of deviancy and
reflecting in action the primary concern to maintain
institutional integrity and the requisite constitutional
restraints. Commitment to the Constitution is a facet of
constitutional morality.”

135 (2014) 9 SCC 1

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 447 of 567

xx xx xx

82. In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as
the primary one and any other interest secondary. The
maxim salus populi suprema lex, has not only to be kept in
view but also has to be revered. The faith of the people is
embedded in the root of the idea of good governance
which means reverence for citizenry rights, respect for
fundamental rights and statutory rights in any governmental
action, deference for unwritten constitutional values,
veneration for institutional integrity, and inculcation of
accountability to the collective at large. It also conveys that
the decisions are taken by the decision-making authority
with solemn sincerity and policies are framed keeping in
view the welfare of the people, and including all in a
homogeneous compartment. The concept of good
governance is not a Utopian conception or an abstraction.

It has been the demand of the polity wherever democracy
is nourished. The growth of democracy is dependent upon
good governance in reality and the aspiration of the people
basically is that the administration is carried out by people
with responsibility with service orientation.

83. … The issue of constitutional trust arises in the context
of the debate in the Constituent Assembly that had taken
place pertaining to the recommendation for appointment of
a Minister to the Council of Ministers. Responding to the
proposal for the amendment suggested by Prof. K.T. Shah
with regard to the introduction of a disqualification of a
convicted person becoming a Minister, Dr B.R. Ambedkar
had replied: (CAD Vol. VII, p. 1160)

“His last proposition is that no person who is
convicted may be appointed a Minister of the State.
Well, so far as his intention is concerned, it is no
doubt very laudable and I do not think any Member of
this House would like to differ from him on that
proposition. But the whole question is this: whether
we should introduce all these qualifications and
disqualifications in the Constitution itself. Is it not
desirable, is it not sufficient that we should trust the
Prime Minister, the legislature and the public at large
watching the actions of the Ministers and the actions
of the legislature to see that no such infamous thing is
done by either of them?I think this is a case which

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 448 of 567

may eminently be left to the good sense of the Prime
Minister and to the good sense of the legislature with
the general public holding a watching brief upon
them. I therefore say that these amendments are
unnecessary.”

382) It is submitted by Mr. Divan that the Aadhaar project is destructive

of limited government, constitutionalism and constitutional trust.

The Constitution is not about the power of the State, but about

the limits on the power of the State. Post Aadhaar, the State will

completely dominate the citizen and alter the relationship

between citizen and State. The features of a Totalitarian State is

seen from:

(a) A person cannot conduct routine activities such as operating

a bank account, holding an investment in mutual funds, receiving

government pension, receiving scholarship, receiving food

rations, operating a mobile phone without the State knowing

about these activities.(Sections 7, 32 and 57 of the Aadhaar Act).

(b) The State can build a profile of the individual based on the

trail of authentication from which the nature of the citizen’s activity

can be determined. (Sections 2(d) and 32 of the Aadhaar Act and

Regulation 20
,
and
of the Aadhaar (Authentication)

Regulation, 2016.

(c) By disabling Aadhaar the State can cause the civil death of

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 449 of 567

the person.(Sections 23(2)(g) of the Aadhaar Act and Regulation

27 and 28 of the Aadhaar (Enrolment and Updates) Act, 2016).

(d) By making Aadhaar compulsory for other activities such as

air travel, rail travel, directorship in companies, services and

benefits extended by State governments and municipal

corporations etc. there will be virtually no zone of activity left

where the citizen is not under the gaze of the State. This will have

a chilling effect on the citizen.

(e) In such a society, there is little or no personal autonomy.

The State is pervasive, and dignity of the individual stands

extinguished.

(f) This is an inversion of the accountability in the Right to

Information age: instead of the State being transparent to the

citizen, it is the citizen who is rendered transparent to the State.

383) Mr. Sibal also added that accountability of governments and the

state is a phenomenon which is accepted across the world. In

furtherance of the Right to information Act, 2005 was passed

intended to ensure transparency and state accountability.

Through Aadhaar, on the other hand, the state seeks

transparency and accountability of an individual’s multifarious

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 450 of 567

activities in the course of his everyday life. This fundamentally

alters the relationship between the citizen and the State and

skews the balance of power in favour of the State, which is

anathema to the Constitution.

384) There is no dispute about the exposition of the principles of

limited government and good governance, etc., as highlighted by

the learned counsel for the petitioners and noted above.

We may add that we are the Republic and it becomes the

duty of the Court to keep it. That can be achieved by asking the

stakeholders to follow the Constitution, which we have. There are

six key constitutional notions, a brilliant exposition whereof has

been provided in the case of
Manoj Narula v. Union of India136
.

The idea of constitutional renaissance was first sounded in
the

said judgment
.

It is further elaborated in the case of
Government

of NCT of Delhi v. Union of India137
in the opinion penned down by

one of us138. It stands severally described now as “a constant

awakening as regards the text, context, perspective, purpose,

and the rule of law”, an awakening that makes space for a

“resurgent constitutionalism” and “allows no room for absolutism”

nor any “space for anarchy”. It is held, therein the term “rational

136 (2014) 9 SCC 1
137 (2018) SCC Online SC 661
138 Dipak Misra, CJI

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 451 of 567

anarchism” has “no entry in the field of constitutional governance

or the rule of law” and by the same token constitutional text and

context resolutely repudiate the lineages of absolutism or the

itineraries of dictatorship. One may then say that

“constitutionalism” is the space between “absolutism” and

“anarchy” and its constant repair and renewal is the prime

function of adjudication.

385) In an illuminating Article titled ‘A Constitutional Renaissance’ on

the aforesaid verdict authored by Prof. Upendra Baxi 139, the

learned Professor has made following pertinent comments:

“Awakening is a constant process; renaissance has a
beginning but knows no end because everyday fidelity to
the vision, spirit and letter of the Constitution is the
supreme obligation of all constitutional beings. One ought
to witness in daily decisions an “acceptance of
constitutional obligations” not just within the text of the
Constitution but also its “silences”. To thus reawaken is to
be “obeisant to the constitutional conscience with a sense
of constitutional vision”. Second, courts should adopt that
approach to interpretation which “glorifies the democratic
spirit of the Constitution”. “Reverence” for the Constitution
(or constitutionalism) is the essential first step towards
constitutional renaissance. Third, people are the true
sovereigns, never to be reduced to the servile status of
being a subject; rather as beings with rights, they are the
source of trust in governance and founts of legitimacy. The
relatively autonomous legislative, executive, administrative
and adjudicatory powers are legitimate only when placed at
the service of constitutional ends. All forms of public power
are held in trust. And political power is not an end but a
means to constitutional governance.”

139 Published in The Indian Express on July 16, 2018

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 452 of 567

386) Since the arguments on limited government advanced by Mr.

Shyam Divan were the same as advanced by him during the

hearing of Binoy Viswam, our purpose would be served by

reproducing the following discussion from
the said judgment
:

“85. There cannot be any dispute about the manner in
which Mr Shyam Divan explained the concept of “limited
Government” in his submissions. Undoubtedly, the
Constitution of India, as an instrument of governance of the
State, delineates the functions and powers of each wing of
the State, namely, the Legislature, the Judiciary and the
Executive. It also enshrines the principle of separation of
powers which mandates that each wing of the State has to
function within its own domain and no wing of the State is
entitled to trample over the function assigned to the other
wing of the State. This fundamental document of
governance also contains principle of federalism wherein
the Union is assigned certain powers and likewise powers
of the State are also prescribed. In this context, the Union
Legislature i.e. Parliament, as well as the State
Legislatures are given specific areas in respect of which
they have power to legislate. That is so stipulated in
Schedule VII to the Constitution wherein List I enumerates
the subjects over which Parliament has the dominion, List II
spells out those areas where the State Legislatures have
the power to make laws while List III is the Concurrent List
which is accessible both to the Union as well as the State
Governments. The scheme pertaining to making laws by
Parliament as well as by the legislatures of the State is
primarily contained in
Articles 245
to 254 of the
Constitution. Therefore, it cannot be disputed that each
wing of the State has to act within the sphere delineated for
it under the Constitution. It is correct that crossing these
limits would render the action of the State ultra vires the
Constitution. When it comes to power of taxation,
undoubtedly, power to tax is treated as sovereign power of
any State. However, there are constitutional limitations
briefly described above.

86.
In a nine Judge Bench decision of this Court in
Jindal
Stainless Ltd. & Anr. v. State of Haryana & Ors.
discussion
on these constitutional limitations are as follows:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 453 of 567

“20. Exercise of sovereign power is, however, subject
to Constitutional limitations especially in a federal
system like ours where the States also to the extent
permissible exercise the power to make laws including
laws that levy taxes, duties and fees. That the power
to levy taxes is subject to constitutional limitations is
no longer res-integra. A Constitution Bench of this
Court has in
Synthetics and Chemicals Ltd. v. State of
U.P.
(1990) 1 SCC 109 recognised that in India the
Centre and the States both enjoy the exercise of
sovereign power, to the extent the Constitution confers
upon them that power. This Court declared:

“56 … We would not like, however, to
embark upon any theory of police power
because the Indian Constitution does not
recognise police power as such. But we must
recognise the exercise of Sovereign power
which gives the State sufficient authority to
enact any law subject to the limitations of the
Constitution to discharge its functions.
Hence, the Indian Constitution as a
sovereign State has power to legislate on all
branches except to the limitation as to the
division of powers between the Centre and
the States and also subject to the
fundamental rights guaranteed under the
Constitution. The Indian States, between the
Centre and the States, has sovereign power.
The sovereign power is plenary and inherent
in every sovereign State to do all things
which promote the health, peace, morals,
education and good order of the people.

Sovereignty is difficult to define. This power
of sovereignty is, however, subject to
constitutional limitations.”This power,
according to some constitutional authorities,
is to the public what necessity is to the
individual. Right to tax or levy impost must be
in accordance with the provisions of the
Constitution.”

21. What then are the Constitutional limitations on the
power of the State legislatures to levy taxes or for that
matter enact legislations in the field reserved for them
under the relevant entries of List II and III of the
Seventh Schedule. The first and the foremost of these

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 454 of 567

limitations appears in
Article 13
of the Constitution of
India which declares that all laws in force in the
territory of India immediately before the
commencement of the Constitution are void to the
extent they are inconsistent with the provisions of Part
III dealing with the fundamental rights guaranteed to
the citizens. It forbids the States from making any law
which takes away or abridges, any provision of Part III.

Any law made in contravention of the said rights shall
to the extent of contravention be void. There is no gain
saying that the power to enact laws has been
conferred upon the Parliament subject to the above
Constitutional limitation. So also in terms of
Article
, the residuary power to impose a tax not
otherwise mentioned in the Concurrent List or the
State List has been vested in the Parliament to the
exclusion of the State legislatures, and the States'
power to levy taxes limited to what is specifically
reserved in their favour and no more.

22.
Article 249
similarly empowers the Parliament to
legislate with respect to a matter in the State List for
national interest provided the Council of States has
declared by a resolution supported by not less than
two-thirds of the members present and voting that it is
necessary or expedient in national interest to do so.
The power is available till such time any resolution
remains in force in terms of
Article 249(2)
and the
proviso thereunder.

23.
Article 250
is yet another provision which
empowers the Parliament to legislate with respect to
any matter in the State List when there is a
proclamation of emergency. In the event of an
inconsistency between laws made by Parliament
under
Articles 249
and
, and laws made by
legislature of the States, the law made by Parliament
shall, to the extent of the inconsistency, prevail over
the law made by the State in terms of
Article 251.

24. The power of Parliament to legislate for two or more
States by consent, in regard to matters not otherwise within
the power of the Parliament is regulated by
Article 252
,
while
Article 253
starting with a non-obstante clause
empowers Parliament to make any law for the whole
country or any part of the territory of India for implementing
any treaty, agreement or convention with any other country

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 455 of 567

or countries or any decision made at any international
conference, association or other body.”

87. Mr. Divan, however, made an earnest endeavour to
further broaden this concept of ‘limited Government’ by
giving an altogether different slant. He submitted that there
are certain things that the States simply cannot do because
the action fundamentally alters the relationship between
the citizens and the State. In this hue, he submitted that it
was impermissible for the State to undertake the exercise
of collection of bio-metric data, including fingerprints and
storing at a central depository as it puts the State in an
extremely dominant position in relation to the individual
citizens. He also submitted that it will put the State in a
position to target an individual and engage in surveillance
thereby depriving or withholding the enjoyment of his rights
and entitlements, which is totally impermissible in a country
where governance of the State of founded on the concept
of ‘limited Government’. Again, this concept of limited
government is woven around
Article 21
of the Constitution.

88. Undoubtedly, we are in the era of liberalised
democracy. In a democratic society governed by the
Constitution, there is a strong trend towards the
constitutionalisation of democratic politics, where the
actions of democratically elected Government are judged in
the light of the Constitution. In this context, judiciary
assumes the role of protector of the Constitution and
democracy, being the ultimate arbiter in all matters
involving the interpretation of the Constitution.”

387) We may observe that the matter is examined keeping in view the

fundamental principles of constitutionalism in mind, and more

particularly the principle that the concept of ‘limited government’

is applicable having regard to the fact that the three limbs of the

State are to act within the framework of a written Constitution

which assigns specific powers to each of the wing of the State

and this presupposes that the sovereign power of the Parliament

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 456 of 567

is circumscribed by the provisions of the Constitution and the

legislature is supposed to Act within the boundaries delineated by

the Constitution. The constitutionalism, which is the bedrock of

rule of law, is to be necessarily adhered to by the Parliament.

Further, the power of judicial review which is accorded to the

courts can be exercised to strike down any legislation or

executive action if it is unconstitutional.

388) When we examine this issue in the context of discussion on

various issues already dealt with, it is difficult to agree with the

sweeping proposition advanced by the petitioners that the

Aadhaar project is destructive of limited government and

constitutional trust. These submissions are premised on the

architecture of the Aadhaar being constitutionally intrusive which

threatens the autonomy of individuals and has a tendency of

creating a surveillance state. In support, the petitioners have

referred to certain provisions of the Aadhaar Act. Some

provisions which we found offending are struck down, some

others have been read down and some are tweaked with. We

feel that the statutory regime that would now govern the citizenry,

wards off such a danger, if any.

MONEY BILL

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 457 of 567

Is the Aadhaar Act a validly enacted law having been passed as
a Money Bill?

389) Mr. Chidambaram and Mr. Datar had laid attack on the Act on the

ground that the Bill it could not have been introduced and passed

by the Parliament as Money Bill. It was argued that the Aadhaar

(Targeted Delivery of Financial and Other Subsidies, Benefits and

Services) Bill, 2016 (for short the ‘Bill’) was wrongly certified as

Money Bill under
Article 110
of the Constitution of India by the

Hon’ble Speaker of the Lok Sabha, thereby, virtually excluding

the Rajya Sabha from the legislative process and depriving the

Hon’ble President of his power of return. This, according to them,

is illegal and grossly violates the constitutional provisions.

390) It was submitted that Bills are of three kinds:

(i) Ordinary Bills (
Article 107
);

(ii) Financial Bills viz. subset of Ordinary Bills (
Article 117
);

(iii) Money Bill viz. subset of Financial Bills (
Article 110
).

391)
Article 110
reads as under:

“Article 110 - Definition of "Money Bills".-

(1) For the purposes of this Chapter, a Bill shall be deemed
to be a Money Bill if it contains only provisions dealing with
all or any of the following matters, namely:--

(a) the imposition, abolition, remission, alteration or
regulation of any tax;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 458 of 567

(b) the regulation of the borrowing of money or the giving of
any guarantee by the Government of India, or the
amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the
Government of India;

(c) the custody of the Consolidated Fund or the
Contingency Fund of India, the payment of moneys into or
the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the Consolidated
Fund of India;

(e) the declaring of any expenditure to be expenditure
charged on the Consolidated Fund of India or the
increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated
Fund of India or the public account of India or the custody
or issue of such money or the audit of the accounts of the
Union or of a State; or

(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason
only that it provides for the imposition of fines or other
pecuniary penalties, or for the demand or payment of fees
for licenses or fees for services rendered, or by reason that
it provides for the imposition, abolition, remission, alteration
or regulation of any tax by any local authority or body for
local purposes.

(3) If any question arises whether a Bill is a Money Bill or
not, the decision of the Speaker of the House of the People
thereon shall be final.

(4) There shall be endorsed on every Money Bill when it is
transmit led to the Council of States under
article 109
, and
when it is presented to the President for assent under

article 111
, the certificate of the Speaker of the House of
the People signed by him that it is a Money Bill.”

392) It was submitted that a Money Bill may provide for matters

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 459 of 567

enumerated in Clause (a) to (f) of
Article 110.
Clause (g) has

been added because it may be necessary to include provisions

that are only “incidental” to any of matters specified in (a) to (f).

The learned counsel pointed out the distinguishing features of a

Money Bill are as below:

(i) It shall be introduced only on the recommendation of

President (
Article 117(1)
).

(ii) It shall be introduced only in the House of the People

(
Article 117(1)
, 109(1)
).

(iii) A Money Bill is transmitted by the Lok Sabha to the Rajya

Sabha. Rajya Sabha thereafter may only make recommendations

and return the Bill and not make amendments. The

recommendations may or may not be accepted by the Lok

Sabha. If the Money Bill is not returned within 14 days, it is

deemed to have been passed by both the Houses. (
Article 109(2)

to
Article 109(5)
).

(iv) Upon submission of a Money Bill to the President for his

assent, the President cannot return the Money Bill with the

message requesting that the Houses will reconsider the Bill

(proviso to
Article 111
).

Hence, it is manifest that a Money Bill that a Money Bill is a

special kind of Bill that has the effect of denuding the power of the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 460 of 567

Rajya Sabha of its power to amend the Bill and depriving the

President of his power to return the bill for reconsideration. On

that premise, it was argued that the provisions of a Money Bill

must be construed very strictly and narrowly and only if a Bill falls

strictly under definition of a Money Bill (
Article 110
), it can be

passed as a Money Bill. If the provisions of the Bill fall outside

the strict definition of Money Bill, the said Bill cannot be passed

as a Money Bill.

393) Great emphasis was laid on the word ‘only’ appearing in
Article
which signified that to qualify as a Money Bill, it has to strictly

fall within one or more of the clauses of
Article 110.
For the

interpretation of the word ‘only’, reference was made to the

judgment in the case of
Hari Ram & Ors. v. Babu Gokul

Prasad140
:

“3.
Section 166
of M.P. Land Revenue Code, 1954 reads
as under:

“166. Any person who holds land for agricultural
purposes from a tenure holder and who is not an
occupancy tenant under
Section 169
or a protected
lessee under the Berar Regulation of Agricultural
Leases Act, 1951, shall be ordinary tenant of such
land.

Explanation.— For the purposes of this section —

140(1991) Supp. 2 SCC 608

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(i) any person who pays lease money in respect of
any land in the form of crop share shall be deemed to
hold such land;

(ii) any person who cultivates land in partnership with
the tenure holder shall not be deemed to hold such
land;

(iii) any person to whom only the right to cut grass or
to graze cattle or to grow singhara (Trapa bispinosa)
or to propagate or collect lac is granted in any land
shall not be deemed to hold such land for agricultural
purposes.”

A bare perusal of the section indicates that any tenant
other than occupancy tenant if he held the land for
agricultural purposes from a tenure holder, then he became
ordinary tenant by operation of law. Doubt if any stood
removed by the explanation which clarifies the class of
persons who could be deemed to be covered under a
tenant other than occupancy tenant. Since it has been
found that the land was let out to appellant not only for the
right to cut grass, he could not be held to be a person who
was not holding the land for agricultural purposes. The
word ‘only’ in Explanation (iii) is significant. It postulates
that entire land should have been used for the purposes
enumerated. If part of the land was used for cultivation,
then the land could not be deemed to have been granted
for cutting grass only. It has been found that out of 5 and
odd acres of land, the land under cultivation was 2 acres.

Therefore, the negative clause in Explanation (iii) did not
apply and the appellant became ordinary tenant under

Section 166
. In 1959, M.P. Land Revenue Code was
enacted and
Section 185
provided for the persons who
could be deemed to be occupancy tenants. Its relevant part
is extracted below:

“185. Occupancy tenants.— (1) Every person who at
the coming into force of this Code holds—

(i) in the Mahakoshal Region—

(a) ***

(b) ***

(c) any land as an ordinary tenant as defined in the
Madhya Pradesh Land Revenue Code, 1954 (2 of
1955);”

394) The learned counsel also referred to M/s. Saru Smelting (P) Ltd.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 462 of 567

v. Commissioner of Sales Tax, Lucknow141:

“3. The contention of the respondent is that Phosphorous
Bronze is an alloy containing not only the metals
mentioned in the aforesaid entry but Phosphorous also and
as such it is not covered under the aforesaid entry. The
words “other alloy containing any of these metals only”
mean that the alloy made of these metals i.e. copper, tin,
nickel or zinc only and that alone is covered under the said
entry. It was submitted that if any other metal or substance
is included in such an alloy, the same would not be covered
under the aforesaid entry.

xx xx xx

5. We were referred to various dictionary meanings of the
words ‘Phosphorous Bronze’ which have been noticed by
the learned Judge dealing with the case in the High Court.

We are really concerned with the interpretation of the entry.
The emphasis in the entry is — either it should be pure
copper, tin, nickel or zinc and if it is an alloy containing two
or more metals, it must be an alloy containing these metals
only. The expression “only” is very material for
understanding the meaning of the entry. Since the alloy in
dispute contains Phosphorous, may be in a very small
quantity, it cannot fall within Entry 2(a) of the aforesaid
Notification. The appeal consequently fails and is
dismissed with costs.”

395) In order to demonstrate as to what would be the nature and

scope of the Money Bill, reference was made to the following

literature:

“RELEVANT EXCERPTS FROM ERSKINE MAY’S
“PARLIAMENTARY PRACTICE”

Definition of Money Bill –

Section 1(2)
of the Act defines a ‘Money Bill’ as a public bill
which in the opinion of the Speaker of the House of
Commons contains only provisions dealing with all or any
of the following subjects, namely, the imposition, repeal,
remission, alteration, or regulation of taxation; the
imposition for the payment of debt or other financial
141(1993) Supp. 3 SCC 97

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 463 of 567

purposes of charges on the Consolidated Fund or the
national Loans Fund, or on money provided by Parliament
or the variation or repeal of any such charges; Supply; the
appropriation, receipt, custody, issue or audit of accounts
of public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to
those subjects or any of them. For the purposes of this
definition the expressions ‘taxation’, ‘public money’, and
‘loan’ respectively do not include any taxation, money, or
loan raised by local authorities or bodies for local purposes,
matters which, on the other hand, are included within the
scope of Commons financial privilege.

PROCEDURE IN PASSING MONEY BILL

A ‘Money Bill’ which has been passed by the House of
Commons and sent up to the House of Lords at least one
month before the end of the session, but is not passed by
the House of Lords without amendment within one month
after it is so sent up, is, unless the House of Commons
direct to the contrary, to be presented for the Royal Assent
and becomes an Act of Parliament on the Royal Assent
being signified to it. A ‘Money Bil’, when it is sent up to the
House of Lords and when it is presented to Her Majesty,
must be endorsed with the Speaker’s certificate that it is
such a bill. Before giving this certificate the Speaker is
directed to consult, if practicable, those two members of
the Panel of Chairs who are appointed for the purpose at
the beginning of each session by the Committee of
Selection.

When the Speaker has certified a bill to be a ‘Money Bill’
this is recorded in the Journal; and Section 3 of the
Parliament Act 1911 stipulates that such certificate is
conclusive for all purposes and may not be questioned in a
court of law.

No serious practical difficulty normally arises in deciding
whether a particular bill is or is not a ‘Money Bill’; and
criticism has seldom been voiced of the Speaker’s action in
giving or withholding a certificate. A bill which contains any
of the enumerated matters and nothing besides is
indisputably a ‘Money bill’. If it contains any other matters,
then, unless these are ‘subordinate matters incidental to’
any of the enumerated matters so contained in the bill, the
bill is not a ‘Money bill’. Furthermore, even if the main
object of a bill is to create a new charge on the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 464 of 567

Consolidated Fund or on money provided by Parliament,
the bill will not be certified if it is apparent that the primary
purpose of the new charge is not purely financial.”

THE PARLIAMENTARY ACT, 1911

Chapter 13 of the Parliament Act, 1911 wherein Money Bill
is defined as under:

“(1) …

(2) A Money Bill means a Public Bill which in the opinion of
the Speaker of the House of Commons contains only
provisions dealing with all or any of the following subjects,
namely, the imposition, repeal, remission, alteration, or
regulation of taxation; the imposition for the payment of
debt or other financial purposes of charges on the
Consolidated Fund, or on money provided by Parliament,
or the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts
of public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to
those subjects or any of them. In this subsection the
expressions “taxation”, “public money”, and “loan”
respectively do not include any taxation, money, or loan
raised by local authorities or bodies for local purposes.

(3) There shall be endorsed on every Money Bill when it is
sent up to the House of Lords and when it is presented to
His Majesty for assent the certificate of the Speaker of the
House of Commons signed by him that it is a Money Bill.

Before giving his certificate, the Speaker shall consult, if
practicable, two members to be appointed from the
Chairmen’s Panel at the beginning of each Session by the
Committee of Selection.”

RELEVANT EXCERPTS FROM THE CONSTITUTION OF
IRELAND

(1) A Money Bill means a Bill which contains only
provisions dealing with all or any of the following matters,
namely, the imposition, repeal, remission, alteration or
regulation of taxation; the imposition for the payment of
debt or other financial purposes of charges on public
moneys or the variation or repeal of any such charges;
supply, the appropriation, receipt, custody, issue or audit of
accounts of public money; the raising or guarantee of any

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 465 of 567

loan or the repayment thereof; matters subordinate and
incidental to these matters or any of them.

(2) In this definition the expressions “taxation”, “public
money” and “loan” respectively do not include any taxation,
money or loan raised by local authorities or bodies for local
purposes.

RELEVANT EXCERPTS FROM KAUL & SHAKDER’S
“PRACTICE AND PROCEDURE OF PARLIAMENT”, LOK
SABHA SECRETARIAT AT INDIA

Speaker Mavalankar observed as follows:

“Prima facie, it appears to me that the words of

article 110 (imposition
, abolition, remission, alteration,
regulation of any tax) are sufficiently wide to make the
Consolidated Bill a Money Bill. A question may arise as to
what is the exact significance or scope of the word ‘only’
and whether and how far that word goes to modify or
control the wide and general words ‘imposition, abolition,
remission, etc.’.

I think, prima facie, that the word ‘only’ is not
restrictive of the scope of the general terms. If a Bill
substantially deals with the imposition, abolition, etc., of a
tax, then the mere fact of the inclusion in the Bill of other
provisions which may be necessary for the administration
of that tax or, I may say, necessary for the achievement of
the objective of the particular Bill, cannot take away the Bill
from the category of Money Bills. One has to look to the
objective of the bill. Therefore, if the substantial provisions
of the Bill aim at imposition, abolition, etc., of any tax then
the other provisions would be incidental and their inclusion
cannot be said to take it away from the category of a
Money Bill. Unless one construes the word ‘only’ in this
way it might lead to make
article 110
a nullity. No tax can
be imposed without making provisions for its assessment,
collection, administration, reference to courts or tribunals,
etc, one can visualise only one section in a Bill imposing
the main tax and there may be fifty other sections which
may deal with the scope, method, manner, etc., of that
imposition.

Further, we have also to consider the provisions of
sub-clause (2) of
article 110;
and these provisions may be

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 466 of 567

helpful to clarify the scope of the word ‘only’, not directly
but indirectly.”

396) It was further submitted that though clause (3) of
Article 110

stipulates that decision of the Speaker on whether a Bill is a

Money Bill or not is final, that did not mean that it was not subject

to the judicial scrutiny and, therefore, in a given case, the Court

was empowered to decide as to whether decision of the Speaker

was constitutionally correct. In respect of Bill in question, it was

argued that though
Section 7
states that subsidies, benefits and

services shall be provided from Consolidated Fund of India which

was an attempt to give it a colour of Money Bill, some of the other

provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill

(which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the

Aadhaar Act) do not fall under any of the clauses of
Article 110
of

the Constitution. Therefore, some provisions which were other

than those covered by Money Bill and, therefore, introduction of

the Bill as Money Bill was clearly inappropriate. It was also

argued that, in this scenario, entire Act was bound to fail as there

is no provision for severing clauses in Indian Constitution, unlike

Section 55
of the Australian Constitution. Insofar as justiciability

of the Speaker’s decision is concerned, following judgments were

referred to:

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 467 of 567

(i) Sub-Committee on
Judicial Accountability v. Union of

India & Ors.142

(
ii) S.R. Bommai & Ors. v. Union of India & Ors.143

(iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.144

(
iv) Ramdas Athawale v. Union of India & Ors.145

(
v) Kihoto Hollohan v. Zachillhu & Ors.146

397) It was emphasised that the creation and composition of the Rajya

Sabha (Upper House) is an indicator of, and is essential to,

constitutional federalism. It is a part of basic structure of the

Constitution as held in
Kuldip Nayar & Ors. v. Union of India &

Ors.147
. Therefore, Rajya Sabha could not have been by-passed

while passing the legislation in question and doing away with this

process and also right of the President to return the Bill has

rendered the statute unconstitutional.

398) The learned Attorney General as well as Mr. Dwivedi and some

other counsel appearing for respondents refuted the aforesaid

submissions in a strongest manner possible. It was argued that

the Bill was rightly characterised as a Money Bill and introduced

under
Article 110
of the Constitution. According to them, the
142(1991) 4 SCC 699
143(1994) 3 SCC 1
144(2007) 3 SCC 184
145(2010) 4 SCC 1
146(1992) Supp. 2 SCC 651
147(2006) 7 SCC 1

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 468 of 567

heart of the Aadhaar Act is
Section 7
. It is not the creation of

Aadhaar number per se which is the core of the Act, rather, that is

only a means to identify the correct beneficiary and ensure

“targeted delivery of subsidies, benefits and services”, the

expenditure for which is incurred from the Consolidated Fund of

India. A conjoint reading of the preamble to the Act along with

Section 7
clearly discloses the legislative intent and the object of

the Act, which is to ensure that subsidy, benefit or service for

which expenditure is incurred from or the receipt therefrom forms

part of, the Consolidated Fund of India should be targeted to

reach the intended beneficiary. It was argued, without prejudice

to the above, that the decision of the Speaker incorporated into a

certificate sent to the President is final and cannot be the subject

matter of judicial review. To support the aforesaid proposition,

reference was made to the judgment in the case of
Mohd. Saeed

Siddiqui v. State of Uttar Pradesh & Anr.148
wherein the Court held

as under:

“7. Leave granted in the special leave petition. This appeal
is directed against the order dated 27-8-2012 passed by
the Division Bench of the High Court of Judicature of
Allahabad in Mukul Upadhyay v. N.K. Mehrotra [Civil Misc.
Writ Petition No. 24905 of 2012 (Writ-C 24905 of 2012),
order dated 27-8-2012 (All)] whereby the High Court, while
allowing the amendment application to the writ petition and
holding the writ petition to be maintainable, directed to list
the petition on 27-9-2012 for hearing on merits. By way of

148(2014) 11 SCC 415

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 469 of 567

the said amendment application, the writ petitioner sought
to add two grounds in the writ petition viz. the Amendment
Act is violative of the provisions of the Constitution of India
and the same was wrongly introduced as a Money Bill in
clear disregard to the provisions of
Article 199
of the
Constitution of India. Accordingly, it was prayed to issue a
writ, order or direction in the nature of mandamus declaring
the Amendment Act as ultra vires the provisions of the
Constitution of India.

xx xx xx

12. It was further submitted by Mr Venugopal that the
Amendment Act was not even passed by the State
Legislature in accordance with the provisions of the
Constitution of India and is, thus, a mere scrap of paper in
the eye of the law. The Bill in question was presented as a
Money Bill when, on the face of it, it could never be called
as a Money Bill as defined in
Articles 199(1)
and
199(2)
of
the Constitution of India. Since the procedure for an
ordinary Bill was not followed and the assent of the
Governor was obtained to an inchoate and incomplete Bill
which had not even gone through the mandatory
requirements under the Constitution of India, the entire
action was unconstitutional and violative of
Article 200
of
the Constitution of India.

xx xx xx

31. The main apprehension of the petitioner is that the Bill
that led to the enactment of the Amendment Act was
passed as a Money Bill in violation of
Articles 197
and
of the Constitution of India which should have been passed
by both the Houses viz. U.P. Legislative Assembly and U.P.
Legislative Council and was wrongly passed only by the
U.P. Legislative Assembly. During the course of hearing, Mr
Desai, learned Senior Counsel appearing for the State of
U.P., placed the original records pertaining to the
proceedings of the Legislative Assembly, decision of the
Speaker as well as the Governor, which we are going to
discuss in the latter part of our judgment.

xx xx xx

34. The above provisions make it clear that the finality of
the decision of the Speaker and the proceedings of the
State Legislature being important privilege of the State

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 470 of 567

Legislature viz. freedom of speech, debate and
proceedings are not to be inquired by the courts. The
“proceeding of the legislature” includes everything said or
done in either House in the transaction of the parliamentary
business, which in the present case is enactment of the
Amendment Act. Further,
Article 212
precludes the courts
from interfering with the presentation of a Bill for assent to
the Governor on the ground of non-compliance with the
procedure for passing Bills, or from otherwise questioning
the Bills passed by the House. To put it clear, proceedings
inside the legislature cannot be called into question on the
ground that they have not been carried on in accordance
with the Rules of Business. This is also evident from
Article
which speaks about the powers, privileges of the
Houses of the Legislature and of the members and
committees thereof.

35. We have already quoted
Article 199.
In terms of
Article
199(3)
, the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final
and the said decision cannot be disputed nor can the
procedure of the State Legislature be questioned by virtue
of
Article 212.

We are conscious of the fact that in the
decision of this Court in
Raja Ram Pal v. Lok Sabha

[(2007) 3 SCC 184] , it has been held that the proceedings
which may be tainted on account of substantive or gross
irregularity or unconstitutionality are not protected from
judicial scrutiny.

36. Even if it is established that there was some infirmity in
the procedure in the enactment of the Amendment Act, in
terms of Article 255 of the Constitution the matters of
procedure do not render invalid an Act to which assent has
been given by the President or the Governor, as the case
may be.

xx xx xx

43. As discussed above, the decision of the Speaker of the
Legislative Assembly that the Bill in question was a Money
Bill is final and
the said decision
cannot be disputed nor
can the procedure of the State Legislature be questioned
by virtue of
Article 212.
Further, as noted earlier,
Article 252

also shows that under the Constitution the matters of
procedure do not render invalid an Act to which assent has
been given by the President or the Governor, as the case
may be. Inasmuch as the Bill in question was a Money Bill,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 471 of 567

the contrary contention by the petitioner against the
passing of the said Bill by the Legislative Assembly alone is
unacceptable.”

399) It was submitted that the challenge on identical grounds was,

thus, repelled in the aforesaid case wherein validity of legislative

enactment of a State in question, on the same ground, namely, it

could not called Money Bill as defined in
Article 199
of the

Constitution, which was pari materia with
Article 110
of the

Constitution qua the Parliament. Judgment in the case of

Yogendra Kumar Jaiswal & Ors. v. State of Bihar & Ors.149
was

also referred to wherein the Court was concerned with
Orissa

Special Courts Act, 2006
which was also passed as Money Bill

and was challenged as violative of
Article 199
of the Constitution.

It was argued that the Court held in this case that decision of the

Speaker that the Bill in question is a Money Bill is final and such a

decision cannot be disputed nor can the procedure of the state

legislature can be questioned by virtue of
Article 212
of the

Constitution. The learned Attorney General specifically read out

the following portion from
the said judgment
:

“42. In this regard, we may profitably refer to the authority
in Mohd. Saeed Siddiqui v. State of U.P. [Mohd. Saeed
Siddiqui v. State of U.P., (2014) 11 SCC 415], wherein a
three-Judge Bench while dealing with such a challenge,
held that
Article 212
precludes the courts from interfering
with the presentation of a Bill for assent to the Governor on

149(2016) 3 SCC 183

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 472 of 567

the ground of non-compliance with the procedure for
passing Bills, or from otherwise questioning the Bills
passed by the House, for proceedings inside the legislature
cannot be called into question on the ground that they have
not been carried on in accordance with the Rules of
Business. Thereafter, the Court referring to
Article 199(3)

ruled that the decision of the Speaker of the Legislative
Assembly that the Bill in question was a Money Bill is final
and the said decision cannot be disputed nor can the
procedure of the State Legislature be questioned by virtue
of
Article 212.

The Court took note of the decision in
Raja
Ram Pal [Raja Ram Pal v. Lok Sabha
, (2007) 3 SCC 184]
wherein it has been held that the proceedings which may
be tainted on account of substantive or gross irregularity or
unconstitutionality are not protected from judicial scrutiny.
Eventually, the Court repelled the challenge.

43.
In our considered opinion, the authorities cited by the
learned counsel for the appellants do not render much
assistance, for the introduction of a Bill, as has been held
in
Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of
U.P.
, (2014) 11 SCC 415] , comes within the concept of
“irregularity” and it does come within the realm of
substantiality. What has been held in Special Reference
No. 1 of 1964 [Powers, Privileges and Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964, AIR
1965 SC 745] has to be appositely understood. The factual
matrix therein was totally different than the case at hand as
we find that the present controversy is wholly covered by
the pronouncement in Mohd. Saeed Siddiqui [Mohd.

Saeed Siddiqui v. State of U.P.
, (2014) 11 SCC 415] and
hence, we unhesitatingly hold that there is no merit in the
submission so assiduously urged by the learned counsel
for the appellants.”

400) Reliance was also placed on three judgments of Constitution

Bench of this Court150. The learned Attorney General also

submitted that even if it is presumed that there is illegality of

procedure in the conduct of business in the Parliament, such

150Mangalore Ganesh Beedi Works v. State of Mysore & Anr.
, 1963 Supp (1) SCR 275;
Ramdas
Athawale v. Union of India & Ors.
, (2010) 4 SCC 1, and;
M.S.M. Sharma v. Dr. Shree Krishna
Sinha & Ors.
, AIR 1960 SC 1186

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 473 of 567

parliamentary proceedings were immune from challenge.

Attention of the Court was also drawn to
Article 122
, which

prohibits any proceedings of Parliament being called in question

on the ground of “any alleged irregularity of procedure”. It was

submitted that the decision and certification of the Speaker being

a matter of procedure is included in the Chapter under the heads

“Legislative Procedure” being
Articles 107
to 111, “Procedure in

Financial Matters” being
Articles 112
to 117 and “Procedure

Generally” being
Article 118
to 122 placing beyond doubt that

separation of powers is embedded in these provisions clearly

excluding judicial review in matters of procedure. Submission

was that if this is clearly a Money Bill, being placed beyond

challenge in a Court of Law, then to term it as a Financial Bill as

contended by the petitioners would be wholly unjustified. Dilating

the aforesaid proposition, it was pointed out that in the Draft

Constitution prepared by the drafting committee,
Article 101

provided for immunity of Parliamentary proceedings from judicial

intervention on ‘alleged irregularity of procedure’. This article

finally got renumbered as
Article 122
in the Constitution of India.

During the Constituent Assembly debates, Shri H.V. Kamath

suggested an amendment to draft
Article 101
to clarify that the

validity of any Parliamentary proceedings shall not be called in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 474 of 567

question in any court. Accordingly, he suggested that the words

‘called in question’ be replaced with ‘called in question in any

court’. Refuting this suggested amendment, Dr. B.R. Ambedkar

categorically stated:

“Sir, with regard to the amendment of Mr. Kamath, I do not
think it is necessary, because where can the proceedings
of Parliament be questioned in a legal manner except in a
court? Therefore the only place where the proceedings of
Parliament can be questioned in a le-gal manner and legal
sanction obtained is the Court. Therefore it is unnecessary
to mention the words which Mr. Kamath wants in his
amendment. For the reason I have explained, the only
forum there the proceedings can be questioned in a
legal manner and legal relief obtained either against
the President or the Speaker or any officer or Member,
being the Court, it is unnecessary to specify the forum.
Mr. Kamath will see that the marginal note makes it clear.”

401) Support of the judgment rendered by Patna High Court in
Patna

Zilla Truck Owners Association & Ors. v. State of Bihar & Ors.151

was also taken, which has been approved by the Constitution

Bench judgment of this Court in
State of Punjab v. Sat Pal Dang

& Ors.152
. It was also argued that the legal position was similar in

other Parliamentary democracies like Australia and Canada.

402) In any case, argued the learned Attorney General and Mr.

Dwivedi, the Bill was rightly introduced as Money Bill as it merited

such a description in law as well. To buttress this submission,

doctrine of pith and substance was invoked as a guiding test. It
151AIR 1963 Pat 16
152(1969) 1 SCR 478

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 475 of 567

was argued that
Section 7
which was the heart and soul of the

Aadhaar Act fulfilled this requirement as the subsidies, benefits

and services, the expenditure of which is incurred from the

Consolidated Fund of India. Therefore, conditions
laid down in

Article 110
were fully satisfied. Following judgments 153 explaining

the doctrine of pith and substance were pressed into substance.

It was submitted that undoubtedly in pith and substance, the

object of the Aadhaar Act is to identify the correct beneficiaries

and ensure the “targeted delivery of subsidies, benefits and

services”, the expenditure for which is incurred from the

Consolidated Fund of India. The creation of the Aadhaar number

and authentication facility are in furtherance of the object of the

Aadhaar Act, which is permissible under
Article 110(g).
It was

also argued that
Section 57
, which has been attacked as being

untraceable to any of the sub-clauses of (a) to (f) of
Article 110

cannot be looked at in isolation. This Bill in its pith and substance

should pass the test of being a Money Bill and not isolated

provisions. On the contrary,
Section 57
of the Act is also

incidental to the object of the Act and creates a limitation upon

use of Aadhaar by private parties wherein even though nothing

prevents them from using Aadhaar for other purposes, the same

153A.S. Krishna v. State of Madras
, (1957) SCR 399;
Union of India & Ors. v. Shah Goverdhan L.
Kabra Teachers’ College
, (2002) 8 SCC 228, and;
P.N. Krishna Lal & Ors. v. Government of
Kerala & Anr.
, 1995 Supp (2) SCC 187

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 476 of 567

has been subjected to the procedure and obligations of
Section
, which requires, inter alia, informed consent of the Aadhaar

number holder, purpose limitation, i.e. the identity information will

be used only for submission to CIDR for authentication and the

private entity must provide alternatives to submission of such

identity information, which, in other words, means that private

parties cannot insist upon Aadhaar and make Aadhaar

mandatory, unless required by law. Therefore,
Section 57
is a

limitation imposed under the Aadhaar Act on the use of Aadhaar

number by private parties which is purely incidental to the object

of the Act and would squarely fall within
Article 110(g)
of the

Constitution.

403) At the outset, we would like to recognise the importance of Rajya

Sabha (Upper House) in a bicameral system of the Parliament.

The significance and relevance of the Upper House has been

succinctly exemplified by this Court in Kuldip Nayar’s case in the

following words:

“74. The growth of “bicameralism” in parliamentary forms
of Government has been functionally associated with the
need for effective federal structures. This nexus between
the role of “Second Chambers” or Upper Houses of
Parliament and better coordination between the Central
Government and those of the constituent units, was
perhaps first
laid down in
definite terms with the
Constitution of the United States of America, which was
ratified by the thirteen original States of the Union in the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 477 of 567

year 1787. The Upper House of the Congress of USA,
known as the Senate, was theoretically modelled on the
House of Lords in the British Parliament, but was totally
different from the latter with respect to its composition and
powers.

75. Since then, many nations have adopted a bicameral
form of Central Legislature, even though some of them are
not federations. On account of colonial rule, these British
institutions of parliamentary governance were also
embodied in the British North America Act, 1867 by which
the Dominion of Canada came into existence and the
Constitution of India, 1950. In Canada, Parliament consists
of the House of Commons and the Senate (the Upper
House). Likewise, the Parliament of the Union of India
consists of the Lok Sabha (House of the People) and the
Rajya Sabha (Council of States, which is the Upper
House). In terms of their functions as agencies of
representative democracies, the Lower Houses in the
legislatures of India, USA and Canada, namely, the Lok
Sabha, the House of Representatives and the House of
Commons broadly follow the same system of composition.

As of now, Members of the Lower Houses are elected from
pre-designated constituencies through universal adult
suffrage. The demarcation of these constituencies is in
accordance with distribution of population, so as to accord
equity in the value of each vote throughout the territory of
the country. However, with the existence of constituent
States of varying areas and populations, the representation
accorded to these States in the Lower House becomes
highly unequal. Hence, the composition of the Upper
House has become an indicator of federalism, so as to
more adequately reflect the interests of the constituent
States and ensure a mechanism of checks and balances
against the exercise of power by Central authorities that
might affect the interests of the constituent States.

xx xx xx

79. The genesis of the Indian Rajya Sabha on the other
hand benefited from the constitutional history of several
nations which allowed the Constituent Assembly to
examine the federal functions of an Upper House.
However, “bicameralism” had been introduced to the
provincial legislatures under the British rule in 1921.
The
Government of India Act, 1935
also created an Upper
House in the federal legislature, whose members were to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 478 of 567

be elected by the members of provincial legislatures and in
case of Princely States to be nominated by the rulers of
such territories. However, on account of the realities faced
by the young Indian Union, a Council of States (the Rajya
Sabha) in the Union Parliament was seen as an essential
requirement for a federal order. Besides the former British
provinces, there were vast areas of Princely States that
had to be administered under the Union. Furthermore, the
diversity in economic and cultural factors between regions
also posed a challenge for the newly-independent country.
Hence, the Upper House was instituted by the Constitution-
framers which would substantially consist of members
elected by the State Legislatures and have a fixed number
of nominated members representing non-political fields.
However, the distribution of representation between the
States in the Rajya Sabha is neither equal nor entirely
based on population distribution. A basic formula is used to
assign relatively more weightage to smaller States but
larger States are accorded weightage regressively for
additional population. Hence the Rajya Sabha incorporates
unequal representation for States but with proportionally
more representation given to smaller States. The theory
behind such allocation of seats is to safeguard the interests
of the smaller States but at the same time giving adequate
representation to the larger States so that the will of the
representatives of a minority of the electorate does not
prevail over that of a majority.

80. In India,
Article 80
of the Constitution of India
prescribes the composition of the Rajya Sabha. The
maximum strength of the House is 250 members, out of
which up to 238 members are the elected representatives
of the States and the Union Territories [
Article 80(1)(b)]
,
and
members are nominated by the President as
representatives of non-political fields like literature,
science, art and social services [
Articles 80(1)(a)
and

80(3)].
The members from the States are elected by the
elected members of the respective State Legislative
Assemblies as per the system of proportional
representation by means of the single transferable vote
[
Article 80(4)].
The manner of election for representatives
from the Union Territories has been left to prescription by
Parliament [
Article 80(5)].
The allocation of seats for the
various States and Union Territories of the Indian Union is
enumerated in the Fourth Schedule to the Constitution,
which is read with
Articles 4(1)
and
80(2).
This allocation

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 479 of 567

has obviously varied with the admission and reorganisation
of States.”

404) The Rajya Sabha, therefore, becomes an important institution

signifying constitutional fedaralism. It is precisely for this reason

that to enact any statute, the Bill has to be passed by both the

Houses, namely, Lok Sabha as well as Rajya Sabha. It is the

constitutional mandate. The only exception to the aforesaid

Parliamentary norm is
Article 110
of the Constitution of India.

Having regard to this overall scheme of bicameralism enshrined

in our Constitution, strict interpretation has to be accorded to

Article 110.
Keeping in view these principles, we have

considered the arguments advanced by both the sides.

405) We would also like to observe at this stage that insofar as

submission of the respondents about the justiciability of the

decision of the Speaker of the Lok Sabha is concerned, we are

unable to subscribe to such a contention. Judicial review would

be admissible under certain circumstances having regard to the

law
laid down by
this Court in various judgments which have

been cited by Mr. P. Chidambaran, learned senior counsel

appearing for the petitioners, and taken note of in paragraph 396.

406) From the submissions of the learned counsel for the parties as

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 480 of 567

taken note of above, it is clear that the petitioners accept that

Section 7 of the Aadhaar Act has the elements of ‘Money Bill’.

The attack is on the premise that some other provisions, namely,

clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds

to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar Act) do not

fall under any of the clauses of
Article 110
of the Constitution and,

therefore, Bill was not limited to only those subjects mentioned in

Article 110.
Insofar as
Section 7
is concerned, it makes receipt of

subsidy, benefit or service subject to establishing identity by the

process of authentication under Aadhaar or furnish proof of

Aadhaar etc. It is also very clearly declared in this provision that

the expenditure incurred in respect of such a subsidy, benefit or

service would be from the Consolidated Fund of India. It is also

accepted by the petitioners that
Section 7
is the main provision of

the Act. In fact, Introduction to the Act as well as the Statement

of Objects and Reasons very categorically record that the main

purpose of Aadhaar Act is to ensure that such subsidies, benefits

and services reach those categories of persons, for whom they

are actually meant.
Sections 2(f)
, (w) and (x) of the Aadhaar Act

define benefit, service and subsidy respectively. These

provisions read as under:

“2(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 481 of 567

group of individuals and includes such other benefits as
may be notified by the Central Government;

2(w) “service” means any provision, facility, utility or any
other assistance provided in any form to an individual or a
group of individuals and includes such other services as
may be notified by the Central Government;

2(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an
individual or a group of individuals and includes such other
subsidies as may be notified by the Central Government.”

407) As all these three kinds of welfare measures are sought to be

extended to the marginalised section of society, a collective

reading thereof would show that the purpose is to expand the

coverage of all kinds of aid, support, grant, advantage, relief

provisions, facility, utility or assistance which may be extended

with the support of the Consolidated Fund of India with the

objective of targeted delivery. It is also clear that various

schemes which can be contemplated by the aforesaid provisions,

relate to vulnerable and weaker section of the society. Whether

the social justice scheme would involve a subsidy or a benefit or

a service is merely a matter of the nature and extent of

assistance and would depend upon the economic capacity of the

State. Even where the state subsidizes in part, whether in cash

or kind, the objective of emancipation of the poor remains the

goal.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 482 of 567

408) The respondents are right in their submission that the expression

subsidy, benefit or service ought to be understood in the context

of targeted delivery to poorer and weaker sections of society. Its

connotation ought not to be determined in the abstract. For as an

abstraction one can visualize a subsidy being extended by

Parliament to the King; by Government to the Corporations or

Banks; etc. The nature of subsidy or benefit would not be the

same when extended to the poor and downtrodden for producing

those conditions without which they cannot live a life with dignity.

That is the main function behind the Aadhaar Act and for this

purpose, enrolment for Aadhaar number is prescribed in Chapter

II which covers
Sections 3
to
. Residents are, thus, held entitled

to obtain Aadhaar number. We may record here that such an

enrolment is of voluntary nature. However, it becomes

compulsory for those who seeks to receive any subsidy, benefit

or service under the welfare scheme of the Government

expenditure whereof is to be met from the Consolidated Fund of

India. It follows that authentication under
Section 7
would be

required as a condition for receipt of a subsidy, benefit or service

only when such a subsidy, benefit or service is taken care of by

Consolidated Fund of India. Therefore,
Section 7
is the core

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 483 of 567

provision of the Aadhaar Act and this provision satisfies the

conditions of
Article 110
of the Constitution. Upto this stage,

there is no quarrel between the parties.

409) In this context, let us examine provisions of Sections 23(2)(h),

54(2)(m) and 57 of the Aadhaar Act. Insofar as
Section 23
is

concerned, it deals with powers and functions of the Authority.

Sub-section (1) thereof says that the Authority shall develop the

policy, procedure and systems for issuing Aadhaar numbers to

individuals and perform authentication thereof under this Act. As

mentioned above, under Section 3 of the Aadhaar Act, Aadhaar

number is to be issued and authentication is performed under

Section 8 of the Aadhaar Act. Sub-section (2) stipulates certain

specified powers and functions which the Authority may perform

and sub-section (h) thereof reads as under:

“23(2)(h) specifying the manner of use of Aadhaar
numbers for the purposes of providing or availing of various
subsidies, benefits, services and other purposes for which
Aadhaar numbers may be used.”

410) This provision, thus, enables the Authority to specify the manner

of use of Aadhaar with specific purpose in mind, namely, for

providing or availing of various subsidies, benefits and services.

These are relatable to
Section 7
. However, it uses the

expression ‘other purposes’ as well. The expression ‘other

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 484 of 567

purposes’ can be read ejusdem generis which would have its

relation to subsidies, benefits and services as mentioned in

Section 7
and it can be confined only to that purpose i.e. scheme

of targeted delivery for giving any grant, relief etc. when it is

chargeable to Consolidated Fund of India. Therefore, this

provision, according to us, can be read as incidental to the main

provision and would be covered by
Article 110(g)
of the

Constitution.
Section 54
confers power upon the Authority to

make regulations consistent with the Act and rules made

thereunder, for carrying out the provisions of the Act. Clause (m)

of sub-section (2) of
Section 54
relates to
Section 23(2)(h)
as can

be seen from its language.

“54(2)(m) the manner of use of Aadhaar numbers for the
purposes of providing or availing of various subsidies,
benefits, services and other purposes for which Aadhaar
numbers may be used under clause (h) of sub-section (2)
of
section 23
.”

411) The interpretation which we have given to
Section 23(2)(h)
would

apply here as well and, therefore, we do not find any problem

with this provision also. Coming to Section 57 of the Aadhaar

Act, it mentions that Aadhaar Act would not prevent use of

Aadhaar number for other purposes under the law. It is only an

enabling provision as it permits the use of Aadhaar number for

other purposes as well. This provision is to be viewed in the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 485 of 567

backdrop that
Section 7
is the core provision. We have already

held that it has substantial nexus with the appropriation of funds

from the Consolidated Fund of India and is directly connected

with
Article 110
of the Constitution. To facilitate this, UIDAI is

established as Authority under the Act which performs various

functions including that of a regulator needing funds for staff

salary and it’s own expenses. Respondents have rights

remarked that the Authority is the performer in chief, the

predominant dramatis personae. It appoints Registrars, enrollers,

REs and ASAs; it lays down device and software specifications,

and develops softwares too; it enrols; it de-duplicates; it

establishes CIDR and manages it; it authenticates; it inspects; it

prosecutes; it imposes disincentives; etc. And all this it does

based on funds obtained by appropriations from Consolidated

Fund of India (
Section 24
).

412) When we examine the provision of
Section 57
in the aforesaid

backdrop, as stated above, it only enables holder of Aadhaar

number to use the said number for other purposes as well. That

would not take away or dilute the sheen of clause 7 (now Section

7) for which purposes the Bill was introduced as Money Bill. In

any case, a part of
Section 57
has already declared

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 486 of 567

unconstitutional whereby even a body corporate in private sector

or person may seek authentication from the Authority for

establishing the identity of an individual.

For all the aforesaid reasons, we are of the opinion that Bill

was rightly introduced as Money Bill. Accordingly, it is not

necessary for us to deal with other contentions of the petitioners,

namely, whether certification by the Speaker about the Bill being

Money Bill is subject to judicial review or not, whether a provision

which does not relate to Money Bill is severable or not. We

reiterate that main provision is a part of Money Bill and other are

only incidental and, therefore, covered by clause (g) of
Article 110

of the Constitution.

Section 139AA
of the Income Tax Act, 1961:

413) The Division Bench of this Court in Binoy Viswam has already

upheld the validity of
Section 139AA
of the Income Tax Act, 1961

by repelling the contention predicated on
Articles 14
and
of the

Constitution of India. No doubt, in
the said judgment
, the Court

held that insofar as scope of judicial review of legislative act is

concerned, it is available on two grounds, namely:

(i) The Act is not within the competence of the legislature

which passed the law, and/or

(ii) It is in contravention of any fundamental rights stipulated in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 487 of 567

Part III of the Constitution or any other rights/provisions of the

Constitution.

414) We have already acknowledged the existence of third ground as

pointed out in
Shayara Bano
case, namely, ‘manifest

arbitrariness’.
An Act
which is manifestly arbitrary would be

unreasonable and contrary to rule of law and, therefore, violative

of
Article 14
of the Constitution. Even when we consider the

provisions of
Section 139AA
of the Income Tax Act, 1961 from

this point of view, it cannot be said that the provision suffers from

the vice of manifest arbitrariness. On the contrary, in Binoy

Viswam itself, the benevolent purpose for inserting such a

provision as a bona fide move has been highlighted. Therefore,

the provision needs this test as well. In this behalf, the Court

observed:

“101. The varying needs of different classes or sections of
people require differential and separate treatment. The
legislature is required to deal with diverse problems arising
out of an infinite variety of human relations. It must,
therefore, necessarily have the power of making laws to
attain particular objects and, for that purpose, of
distinguishing, selecting and classifying persons and things
upon which its laws are to operate. The principle of equality
of law, thus, means not that the same law should apply to
everyone but that a law should deal alike with all in one
class; that there should be an equality of treatment under
equal circumstances. It means that equals should not be
treated unlike and unlikes should not be treated alike. Likes
should be treated alike.”

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 488 of 567

415) Since the issue as to whether right to privacy is a facet of

fundamental rights or not was pending before the Constitution

Bench, the challenge to
Section 139AA
was not examined in the

context of privacy rights, specifically
Article 21
of the Constitution

though this aspect was argued. The Division Bench observed in

this behalf, as under:

“136. Subject to the aforesaid, these writ petitions are
disposed of in the following manner:

136.1. We hold that Parliament was fully competent to
enact
Section 139-AA
of the Act and its authority to make
this law was not diluted by the orders of this Court.

136.2. We do not find any conflict between the provisions
of the Aadhaar Act and
Section 139-AA
of the Income Tax
Act inasmuch as when interpreted harmoniously, they
operate in distinct fields.

136.3.
Section 139-AA
of the Act is not discriminatory nor it
offends equality clause enshrined in
Article 14
of the
Constitution.

136.4.
Section 139-AA
is also not violative of
Article 19(1)

(g) of the Constitution insofar as it mandates giving of
Aadhaar enrolment number for applying for PAN cards, in
the income tax returns or notified Aadhaar enrolment
number to the designated authorities. Further, the proviso
to sub-section (2) thereof has to be read down to mean that
it would operate only prospectively.

136.5. The validity of the provision upheld in the aforesaid
manner is subject to passing the muster of
Article 21
of the
Constitution, which is the issue before the Constitution
Bench in Writ Petition (Civil) No. 494 of 2012 and other
connected matters. Till then, there shall remain a partial
stay on the operation of the proviso to sub-section (2) of

Section 139-AA
of the Act, as described above. No costs.”

416) The nine Judge Bench has already, since then, answered the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 489 of 567

reference by holding that right to privacy is a fundamental right.

Having regard to that, validity of
Section 139AA
of the Act needs

to be tested on this ground.

417) As already explained above, the Constitution Bench has held that

in K.S. Puttaswamy though privacy is a fundamental right inter

alia traceable to the right to liberty enshrined in
Article 21
of the

Constitution, it is not an absolute right but subject to limitations.

The Court also laid down the triple test which need to be satisfied

for judging the permissible limits for invasion of privacy while

testing the validity of any legislation. These are:

(a) The existence of a law.

(b) A “legitimate State interest”; and

(c) Such law should pass the “test of proportionality”.

418) In the present case, there is no dispute that first requirement

stands satisfied as
Section 139AA
is a statutory provision and,

therefore, there is a backing of law. Mr. Tushar Mehta, learned

ASG had argued that not only other two requirements are also

satisfied, rather these have been specifically dealt with by the

Division Bench in Binoy Viswam inasmuch as these aspects were

eluded to, consider, examined and the Court recorded its findings

on these aspects. We find force in this submission of Mr. Mehta.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 490 of 567

Insofar as requirement of ‘legitimate State interest’ is concerned,

he pointed out that though Nariman, J. provided for a lenient test,

namely, ‘larger public interest’ as against ‘legitimate State

interest’, the provision satisfies both the tests. We agree with his

submission, as
Section 139AA
of the Income Tax Act, 1961 seeks

to safeguard the following interest:

“To prevent income tax evasion by requiring, through an
amendment to the
Income Tax Act
, that the Aadhaar
number be linked with the PAN.”

419) The mandatory requirement of quoting/producing PAN number is

given in Rule 114 and the Form 49A. While mandating that

“every person”, (the term “person” as defined under
Section 2(31)

of the Act), shall apply for and get a PAN, the legislature also

provided for the requirement so as to how such number will be

given to every “person” in Rule 114 of the Income Tax Rules, the

relevant part of which is Rule 114(1). While complying with the

mandatory requirement (which have been in existence since

1989) and that for all “persons”, many facts were required to be

disclosed and such disclosure was/is in public interest including

demographic details and biometrics i.e. left thumb

impression/signature.

420) The Parliament, considering the “legitimate State interest” as well

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 491 of 567

as the “larger public interest” has now introduced
Section 139AA

which is only an extension of
Section 139A
which requires linking

of PAN number with Aadhaar number which is issued under the

Act for the purpose of eliminating duplicate PANs from the system

with the help of a robust technology solution. Therefore, those

who have PAN number and have already provided the

information required to get PAN number cannot claim to have any

legitimate expectation of withholding any data required for

Aadhaar under the ground of “privacy”.

421) The respondents have demonstrated with empirical data, in the

common additional affidavit of respondent Nos. 1 and 3 the

existence of the “legitimate State interest” and “larger public

interest”. Being a unique identifier, the problem of bogus or

duplicate PANs can be dealt with in a more systematic and full-

proof manner (though, in the context of
Articles 14
and
of the

Constitution, but at the same time, relevant from the perspective

of legitimate State interest also). Discussion on this aspect, in

Binoy Viswam, proceeds as under:

“60.2. PAN is the key or identifier of all computerised
records relating to the taxpayer. The requirement for
obtaining of PAN is mandated through
Section 139-A
of the
Act. The procedure for application for PAN is prescribed in
Rule 114 of the Rules. The forms prescribed for PAN
application are Forms 49-A and 49-AA for Indian and
foreign citizens/entities. Quoting of PAN has been

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 492 of 567

mandated for certain transactions above specified
threshold value in Rule 114-B of the Rules.

60.3. For achieving the objective of one PAN to one
assessee, it is required to maintain uniqueness of PAN.

The uniqueness of PAN is achieved by conducting a de-
duplication check on all already existing allotted PAN
against the data furnished by new applicant. Under the
existing system of PAN only demographic data is captured.
De-duplication process is carried out using a phonetic
algorithm whereby a Phonetic PAN (PPAN) is created in
respect of each applicant using the data of applicant's
name, father's name, date of birth, gender and status. By
comparison of newly generated PPAN with existing set of
PPANs of all assessees duplicate check is carried out and
it is ensured that same person does not acquire multiple
PANs or one PAN is not allotted to multiple persons. Due to
prevalence of common names and large number of PAN
holders, the demographic way of de-duplication is not
foolproof. Many instances are found where multiple PANs
have been allotted to one person or one PAN has been
allotted to multiple persons despite the application of
abovementioned de-duplication process. While allotment of
multiple PANs to one person has the risk of diversion of
income of person into several PANs resulting in evasion of
tax, the allotment of same PAN to multiple persons results
in wrong aggregation and assessment of incomes of
several persons as one taxable entity represented by
single PAN.

60.4. Presently verification of original documents in only
0.2% cases (200 out of 1,00,000 PAN applications) is done
on a random basis which is quite less. In the case of
Aadhaar, 100% verification is possible due to availability of
online Aadhaar authentication service provided by the
UIDAI. Aadhaar seeding in PAN database will make PAN
allotment process more robust.

60.5. Seeding of Aadhaar number into PAN database will
allow a robust way of de-duplication as Aadhaar number is
de-duplicated using biometric attributes of fingerprints and
iris images. The instance of a duplicate Aadhaar is almost
non-existent. Further seeding of Aadhaar will allow the
Income Tax Department to weed out any undetected
duplicate PANs. It will also facilitate resolution of cases of
one PAN allotted to multiple persons.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 493 of 567

xx xx xx

104. Insofar as the impugned provision is concerned, Mr
Datar had conceded that first test that of reasonable
classification had been satisfied as he conceded that
individual assessees form a separate class and the
impugned provision which targeted only individual
assessees would not be discriminatory on this ground. His
whole emphasis was that
Section 139-AA
of the Act did not
satisfy the second limb of the twin tests of classification as,
according to him, this provision had no rational nexus with
the object sought to be achieved. In this behalf, his
submission was that if the purpose of the provision was to
curb circulation of black money, such an object was not
achievable by seeding PAN with Aadhaar inasmuch as
Aadhaar is only for individuals. His submission was that it
is only the individuals who are responsible for generating
black money or money laundering. This was the basis for
Mr Datar's submission. We find it somewhat difficult to
accept such a submission.

105. Unearthing black money or checking money
laundering is to be achieved to whatever extent possible.
Various measures can be taken in this behalf. If one of the
measures is introduction of Aadhaar into the tax regime, it
cannot be denounced only because of the reason that the
purpose would not be achieved fully. Such kind of menace,
which is deep-rooted, needs to be tackled by taking
multiple actions and those actions may be initiated at the
same time. It is the combined effect of these actions which
may yield results and each individual action considered in
isolation may not be sufficient. Therefore, rationality of a
particular measure cannot be challenged on the ground
that it has no nexus with the objective to be achieved. Of
course, there is a definite objective. For this purpose alone,
individual measure cannot be ridiculed. We have already
taken note of the recommendations of SIT on black money
headed by Justice M.B. Shah. We have also reproduced
the measures suggested by the Committee headed by
Chairman, CBDT on “Measures to Tackle Black Money in
India and Abroad”. They have, in no uncertain terms,
suggested that one singular proof of identity of a person for
entering into finance/business transactions, etc. may go a
long way in curbing this foul practice. That apart, even if
solitary purpose of de-duplication of PAN cards is taken
into consideration, that may be sufficient to meet the
second test of
Article 14.
It has come on record that 11.35

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 494 of 567

lakh cases of duplicate PAN or fraudulent PAN cards have
already been detected and out of this 10.52 lakh cases
pertain to individual assessees. Seeding of Aadhaar with
PAN has certain benefits which have already been
enumerated. Furthermore, even when we address the
issue of shell companies, fact remains that companies are
after all floated by individuals and these individuals have to
produce documents to show their identity. It was sought to
be argued that persons found with duplicate/bogus PAN
cards are hardly 0.4% and, therefore, there was no need to
have such a provision. We cannot go by percentage
figures. The absolute number of such cases is 10.52 lakhs,
which figure, by no means, can be termed as miniscule, to
harm the economy and create adverse effect on the nation.
The respondents have argued that Aadhaar will ensure that
there is no duplication of identity as biometrics will not
allow that and, therefore, it may check the growth of shell
companies as well.

xx xx xx

127. It would be apposite to quote the following discussion
by the Comptroller and Auditor General in his report for the
year 2011:

“Widening of Tax Base

The assessee base grew over the last five years from
297.9 lakh taxpayers in 2005-06 to 340.9 lakh
taxpayers in 2009-10 at the rate of 14.4 per cent.

The Department has different mechanisms available
to enhance the assessee base which include
inspection and survey, information sharing with other
tax departments and third-party information available
in annual information returns. Automation also
facilitates greater crosslinking. Most of these
mechanisms are available at the level of assessing
officers. The Department needs to holistically harness
these mechanisms at macro level to analyse the gaps
in the assessee base. Permanent Account Numbers
(PANs) issued up to March 2009 and March 2010
were 807.9 lakhs and 958 lakhs respectively. The
returns filled in 2008-09 and 2009-10 were 326.5
lakhs and 340.9 lakhs respectively. The gap between
PANs and the number of returns filed was 617.1 lakhs
in 2009-10. The Board needs to identify the reasons

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 495 of 567

for the gap and use this information for appropriately
enhancing the assessee base. The gap may be due
to issuance of duplicate PAN cards and death of
some PAN card holders. The Department needs to
put in place appropriate controls to weed out the
duplicate PANs and also update the position in
respect of deceased assessee. It is significant to note
that the number of PAN card holders has increased
by 117.7 per cent between 2005-06 to 2009-10
whereas the number of returns filed in the same
period has increased by 14.4 per cent only.

The total direct tax collection has increased by 128.8
per cent during the period 2005-06 to 2009-10. The
increase in the tax collection was around nine times
as compared to increase in the assessee base. It
should be the constant endeavour of the Department
to ensure that the entire assessee base, once
correctly identified is duly meeting the entire tax
liability. However, no assurance could be obtained
that the tax liability on the assessee is being
assessed and collected properly. This comment is
corroborated in Para 2.4.1 of Chapter 2 of this report
where we have mentioned about our detection of
undercharge of tax amounting to Rs 12,842.7 crores
in 19,230 cases audited during 2008-09. However,
given the fact that ours is a test audit, the Department
needs to take firm steps towards strengthening the
controls available on the existing statutes towards
deriving an assurance on the tax collections.”
(emphasis supplied)

128. Likewise, the Finance Minister in his Budget speech in
February 2013 described the extent of tax evasion and
offering lesser income tax than what is actually due thereby
labelling India as tax non-compliant, with the following
figures:

“India's tax to GDP ratio is very low, and the
proportion of direct tax to indirect tax is not optional
from the viewpoint of social justice. I place before you
certain data to indicate that our direct tax collection is
not commensurate with the income and consumption
pattern of Indian economy. As against estimated 4.2
crore persons engaged in organised sector
employment, the number of individuals filing return for
salary income are only 1.74 crores. As against 5.6

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 496 of 567

crore informal sector individual enterprises and firms
doing small business in India, the number of returns
filed by this category are only 1.81 crores. Out of the
13.94 lakh companies registered in India up to 31-3-

2014, 5.97 lakh companies have filed their returns for
Assessment Year 2016-17. Of the 5.97 lakh
companies which have filed their returns for
Assessment Year 2016-17 so far, as many as 2.76
lakh companies have shown losses or zero income.
2.85 lakh companies have shown profit before tax of
less than Rs 1 crore. 28,667 companies have shown
profit between Rs 1 crore to Rs 10 crores, and only
7781 companies have profit before tax of more than
Rs 10 crores. Among 3.7 crore individuals who filed
the tax returns in 2015-16, 99 lakhs show income
below the exemption limit of Rs 2.5 lakh p.a. 1.95
crores show income between Rs 2.5 to Rs 5 lakhs, 52
lakhs show income between Rs 5 to Rs 10 lakhs and
only 24 lakh people show income above Rs 10 lakhs.
Of the 76 lakh individual assessees who declare
income above Rs 5 lakhs, 56 lakhs are in the salaried
class. The number of people showing income more
than 50 lakhs in the entire country is only 1.72 lakhs.
We can contrast this with the fact that in the last five
years, more than 1.25 crore cars have been sold, and
number of Indian citizens who flew abroad, either for
business or tourism, is 2 crores in the year 2015.
From all these figures we can conclude that we are
largely a tax non-compliant society. The
predominance of the cash in the economy makes it
possible for the people to evade their taxes. When
too many people evade the taxes, the burden of their
share falls on those who are honest and compliant.”

129. The respondents have also claimed that linking of
Aadhaar with PAN is consistent with India's international
obligations and goals. In this behalf, it is pointed out that
India has signed the Inter-Governmental Agreement (IGA)
with USA on 9-7-2015, for Improving International Tax
Compliance and implementing the Foreign Account Tax
Compliance Act (FATCA). India has also signed a
multilateral agreement on 3-6-2015, to automatically
exchange information based on
Article 6
of the Convention
on Mutual Administrative Assistance in Tax Matters under
the Common Reporting Scheme (CRS), formally referred to
as the Standard for Automatic Exchange of Financial
Account Information (AEoI). As part of India's commitment

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 497 of 567

under FATCA and CRS, financial sector entities capture the
details about the customers using the PAN. In case the
PAN or submitted details are found to be incorrect or
fictitious, it will create major embarrassment for the country.
Under Non-filers Monitoring System (NMS), the Income
Tax Department identifies non-filers with potential tax
liabilities. Data analysis is carried out to identify non-filers
about whom specific information was available in AIR, CIB
data and TDS/TCS returns. Email/SMS and letters are sent
to the identified non-filers communicating the information
summary and seeking to know the submission details of
income tax return. In a large number of cases (more than
10 lakh PANs every year) it is seen that the PAN holder
neither submits the response and in many cases the letters
are return unserved. Field verification by field formations
have found that in a large number of cases, the PAN holder
is untraceable. In many cases, the PAN holder mentions
that the transaction does not relate to them. There is a
need to strengthen PAN by linking it with Aadhaar/biometric
information to prevent use of wrong PAN for high value
transactions.”

422) Adverting to the aspect of proportionality, here again there was a

specific discussion in Binoy Viswam as this argument was raised,

though in the context of
Article 19
of the Constitution. The Court

after explaining the doctrine of proportionality specifically held

that proportionality test stood applied with. Following discussion

in
the said judgment
would amply demonstrate this proposition:

“65. While monitoring the PILs relating to night shelters for
the homeless and the right to food through the public
distribution system, this Court has lauded and
complimented the efforts of the State Governments for inter
alia carrying out biometric identification of the head of
family of each household to eliminate fictitious, bogus and
ineligible BPL/AAY household cards.

xx xx xx

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 498 of 567

125.2. Menace of corruption and black money has reached
alarming proportion in this country. It is eating into the
economic progress which the country is otherwise
achieving. It is not necessary to go into the various reasons
for this menace. However, it would be pertinent to comment
that even as per the observations of the Special
Investigation Team (SIT) on black money headed by
Justice M.B. Shah, one of the reasons is that persons have
the option to quote their PAN or UID or passport number or
driving licence or any other proof of identity while entering
into financial/business transactions. Because of this
multiple methods of giving proofs of identity, there is no
mechanism/system at present to collect the data available
with each of the independent proofs of ID. For this reason,
even SIT suggested that these databases be
interconnected. To the same effect is the recommendation
of the Committee headed by Chairman, CBDT on
measures to tackle black money in India and abroad which
also discusses the problem of money laundering being
done to evade taxes under the garb of shell companies by
the persons who hold multiple bogus PAN numbers under
different names or variations of their names. That can be
possible if one uniform proof of identity, namely, UID is
adopted. It may go a long way to check and minimise the
said malaise.

125.3. Thirdly, Aadhaar or UID, which has come to be
known as the most advanced and sophisticated
infrastructure, may facilitate law-enforcement agencies to
take care of problem of terrorism to some extent and may
also be helpful in checking the crime and also help
investigating agencies in cracking the crimes. No doubt,
going by the aforesaid, and may be some other similarly
valid considerations, it is the intention of the Government to
give fillip to Aadhaar movement and encourage the people
of this country to enrol themselves under the Aadhaar
Scheme.

126. Whether such a scheme should remain voluntary or it
can be made mandatory imposing compulsiveness on the
people to be covered by Aadhaar is a different question
which shall be addressed at the appropriate stage. At this
juncture, it is only emphasised that mala fides cannot be
attributed to this scheme. In any case, we are concerned
with the vires of
Section 139-AA
of the Income Tax Act,
1961 which is a statutory provision. This Court is, thus,
dealing with the aspect of judicial review of legislation.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 499 of 567

Insofar as this provision is concerned, the explanation of
the respondents in the counter-affidavit, which has already
been reproduced above, is that the primary purpose of
introducing this provision was to take care of the problem
of multiple PAN cards obtained in fictitious names. Such
multiple cards in fictitious names are obtained with the
motive of indulging into money laundering, tax evasion,
creation and channelising of black money. It is mentioned
that in de-duplication exercises, 11.35 lakh cases of
duplicate PANs/fraudulent PANs have been detected. Out
of these, around 10.52 lakhs pertain to the individual
assessees. Parliament in its wisdom thought that one PAN
to one person can be ensured by adopting Aadhaar for
allotment of PAN to individuals. As of today, that is the only
method available i.e. by seeding of existing PAN with
Aadhaar. It is perceived as the best method, and the only
robust method of de-duplication of PAN database. It is
claimed by the respondents that the instance of duplicate
Aadhaar is almost non-existent. It is also claimed that
seeding of PAN with Aadhaar may contribute to widening of
the tax case as well, by checking the tax evasions and
bringing into tax hold those persons who are liable to pay
tax but deliberately avoid doing so.”

423) It has been stated by the respondents, on affidavit, that analysis

of Form 61/60 data using PAN Aadhaar linkage shows that a

large number of PAN holders do not quote their PAN in the

prescribed transactions to prevent linking of the transactions to

the PAN. The analysis was performed by matching the Aadhaar

number and person name reported in Form 61 (which was

possible only due to linking of financial transactions/accounts with

Aadhaar) with the Aadhaar and name of the entity available in the

ITD PAN database (possible due to linking of PAN with Aadhaar).

This analysis identified 1.65 crore non-PAN transactions reported

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 500 of 567

through Form 61 (relating to FY 2016-17 and FY 2017-18) where

PAN of the transacting party was present in the PAN database

and was not mentioned filing a wrong form deliberately. These

transactions totalled to around Rs. 33,000 crore (based on

transaction amount reported). This is the amount of undisclosed

high value transaction which would have gone undetected had it

not been for Aadhaar linkage. Similar matching has also helped

populating PAN in 1.12 lakh non-PAN transactions reported under

Statement of Financial Transactions (SFT). Majority of the non-

PAN transactions reported are around Deposit in Cash,

Investment in time deposit, Sale of immovable property, Purchase

of immovable property and Opening an account (other than

savings and time deposit). Thus, linking of PAN with Aadhaar will

significantly enhance legitimate collection of country’s revenue.

424) Taking into account the aforesaid consideration as well as other

factors mentioned above, we feel that there is a justifiable reason

with the State for collection and storage of data in the form of

Aadhaar and linking it with PAN insofar as
Section 139AA
of the

Income Tax Act is concerned. We would like to reproduce para

311 of K.S. Puttaswamy judgment, which reads as under:

“311. Apart from national security, the State may have
justifiable reasons for the collection and storage of data. In
a social welfare State, the Government embarks upon

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 501 of 567

programmes which provide benefits to impoverished and
marginalised sections of society. There is a vital State
interest in ensuring that scarce public resources are not
dissipated by the diversion of resources to persons who do
not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the
utilisation of resources should not be siphoned away for
extraneous purposes. Data mining with the object of
ensuring that resources are properly deployed to legitimate
beneficiaries is a valid ground for the State to insist on the
collection of authentic data. But, the data which the State
has collected has to be utilised for legitimate purposes of
the State and ought not to be utilised unauthorisedly for
extraneous purposes. This will ensure that the legitimate
concerns of the State are duly safeguarded while, at the
same time, protecting privacy concerns. Prevention and
investigation of crime and protection of the revenue are
among the legitimate aims of the State. Digital platforms
are a vital tool of ensuring good governance in a social
welfare State. Information technology—legitimately
deployed is a powerful enabler in the spread of innovation
and knowledge.”

425) Following passages from
Subramanian Swamy v. Union of India,

Ministry of Law & Ors.154
may also be relevant in this behalf and

the same are reproduced below:

“122.
In
State of Madras v. V.G. Row
, the Court has ruled
that the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned and
no abstract standard, or general pattern of reasonableness
can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time,
should all enter into the judicial verdict.

xx xx xx

130. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that the

154(2016) 7 SCC 221

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 502 of 567

restriction should not be excessive and in public interest.

The legislation should not invade the rights and should not
smack of arbitrariness. The test of reasonableness cannot
be determined by laying down any abstract standard or
general pattern. It would depend upon the nature of the
right which has been infringed or sought to be infringed.
The ultimate “impact”, that is, effect on the right has to be
determined. The “impact doctrine” or the principle of
“inevitable effect” or “inevitable consequence” stands in
contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of
the case. The prevailing conditions of the time and the
principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The
nature of social control which includes public interest has a
role. The conception of social interest has to be borne in
mind while considering reasonableness of the restriction
imposed on a right. The social interest principle would
include the felt needs of the society.

xx xx xx

194. Needless to emphasise that when a law limits a
constitutional right which many laws do, such limitation is
constitutional if it is proportional. The law imposing restriction is
proportional if it is meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are necessary.
Such limitations should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public.
Reasonableness is judged with reference to the objective which
the legislation seeks to achieve, and must not be in excess of
that objective (see P.P. Enterprisesv. Union of India). Further,
the reasonableness is examined in an objective manner from
the standpoint of the interest of the general public and not from
the point of view of the person upon whom the restrictions are
imposed or abstract considerations (see
Mohd. Hanif Quareshi
v. State of Bihar
)

On independent examination of the matter, the aforesaid

exercise undertaken in the Binoy Viswam is hereby affirmed as

we are in agreement therewith. We, thus, hold that the provisions

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 503 of 567

of
Section 139AA
of the Income Tax Act, 1961 meet the triple test

of right to privacy, contained in K.S. Puttaswamy.

Prevention of Money Laundering Rules:

426) The petitioners have challenged amendment to Rule 9 of the

Prevention of Money Laundering (Maintenance of Records)

Rules, 2005, (Rules, 2005) which was amended by Prevention of

Money Laundering (Maintenance of Records) Seventh

Amendment Rules, 2017. Rule 9 of the aforesaid Rules is

amended by Second Amendment Rules, 2017 whereby following

additions are made. The amendment reads as under:

“(b) in rule 9, for sub-rule (4) to sub-rule (9), the following
sub-rules shall be substituted, namely:-

(4) Where the client is an individual, who is eligible to be
enrolled for an Aadhaar number, he shall for the purpose of
sub-rule (1) submit to the reporting entity,-

(a) the Aadhaar number issued by the Unique
Identification Authority of India; and

(b) the Permanent Account Number or Form No. 60 as
defined in Income Tax Rules, 1962,

and such other documents including in respect of the
nature of business and financial status of the client as may
be required by the reporting entity:

Provided that where an Aadhaar number has not
been assigned to a client, the client shall furnish proof of
application of enrolment for Aadhaar and in case the
Permanent Account Number is not submitted, one certified
copy of an ‘officially valid document’ shall be submitted.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 504 of 567

Provided further that photograph need not be
submitted by a client falling under clause (b) of sub-rule (1).

(4A) Where the client is an individual, who is not eligible to
be enrolled for an Aadhaar number, he shall for the
purpose of sub-rule (1), submit to the reporting entity, the
Permanent Account Number or Form No. 60 as defined in
the Income Tax Rules, 1962:

Provided that if the client does not submit the
Permanent Account Number, he shall submit one certified
copy of an ‘officially valid document’ containing details of
his identity and address, one recent photograph and such
other documents including in respect of the nature or
business and financial status of the client as may be
required by the reporting entity.

(5) Notwithstanding anything contained in sub-rules (4)
and (4A), an individual who desires to open a small
account in a banking company may be allowed to open
such an account on production of a self-attested
photograph and affixation of signature or thumb print, as
the case may be, on the form for opening the account:

Provided that-

(i) the designated officer of the banking company, while
opening the small account, certifies under his signature
that the person opening the account has affixed his
signature or thumb print, as the case may be, in his
presence;

(ii) the small account shall be opened only at Core
Banking Solution linked banking company branches or in a
branch where it is possible to manually monitor and ensure
that foreign remittances are not credited to a small account
and that the stipulated limits on monthly and annual
aggregate of transactions and balance in such accounts
are not breached, before a transaction is allowed to take
place;

(iii) the small account shall remain operational initially for
a period of twelve months, and thereafter for a further
period of twelve months if the holder of such an account
provides evidence before the banking company of having
applied for any of the officially valid documents within
twelve months of the opening of the said account, with the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 505 of 567

entire relaxation provisions to be reviewed in respect of the
said account after twenty-four months;

(iv) the small account shall be monitored and when there
is suspicion of money laundering or financing of terrorism
or other high risk scenarios, the identity of client shall be
established through the production of officially valid
documents, as referred to in sub-rule (4) and the Aadhaar
number of the client or where an Aadhaar number has not
been assigned to the client, through the production of proof
of application towards enrolment for Aadhaar along with an
officially valid document;

Provided further that if the client is not eligible to be
enrolled for an Aadhaar number, the identity of client shall
be established through the production of an officially valid
document;

(v) the foreign remittance shall not be allowed to be
credited into the small account unless the identity of the
client is fully established through the production of officially
valid documents, as referred to in sub-rule (4) and the
Aadhaar number of the client or where an Aadhaar number
has not been assigned to the client, through the production
of proof of application towards enrolment for Aadhaar along
with an officially valid document:

Provided that if the client is not eligible to be enrolled
for the Aadhaar number, the identity of client shall be
established through the production of an officially valid
document.

(6) Where the client is a company, it shall for the
purposes of sub-rule (1), submit to the reporting entity the
certified copies of the following documents:-

(i) Certificate of incorporation;

(ii) Memorandum and Articles of Association;

(iii) A resolution from the Board of Directors and power
of attorney granted to its managers, officers or employees
to transact on its behalf;

(iv) (a) Aadhaar numbers; and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 506 of 567

(b) Permanent Account Numbers or Form 60 as defined
in the Income Tax Rules, 1962,

issued to managers, officers or employees holding an
attorney to transact on the company’s behalf or where an
Aadhaar number has not been assigned, proof of
application towards enrolment for Aadhaar and in case
Permanent Account Number is not submitted an officially
valid document shall be submitted:

Provided that for the purpose of this clause if the
managers, officers or employees holding an attorney to
transact on the company’s behalf are not eligible to be
enrolled for Aadhaar number and do not submit the
Permanent Account Number, certified copy of an officially
valid document shall be submitted.

(7) Where the client is a partnership firm, it shall, for the
purposes of sub-rule (1), submit to the reporting entity the
certified copies of the following documents:-

(i) registration certificate;

(ii) partnership deed; and

(iii) (a) Aadhaar number; and

(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,

issued to the person holding an attorney to transact on its
behalf or where an Aadhaar number has not been
assigned, proof of application towards enrolment for
Aadhaar and in case Permanent Account Number is not
submitted an officially valid document shall be submitted:

Provided that for the purpose of this clause, if the
person holding an attorney to transact on the company’s
behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.

(8) Where the client is a trust, it shall, for the purposes of
sub-rule (1) submit to the reporting entity the certified
copies of the following documents:-

(i) registration certificate;

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 507 of 567

(ii) trust deed; and

(iii) (a) Aadhaar number; and

(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,

issued to the person holding an attorney to transact on its
behalf or where Aadhaar number has not been assigned,
proof of application towards enrolment for Aadhaar and in
case Permanent Account Number is not submitted an
officially valid document shall be submitted:

Provided that for the purpose of this clause if the
person holding an attorney to transact on the company’s
behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.

(9) Where the client is an unincorporated association or
a body of individuals, it shall submit to the reporting entity
the certified copies of the following documents:-

(i) resolution of the managing body of such association
or body of individuals;

(ii) power of attorney granted to him to transact on its
behalf;

(iii) (a) the Aadhaar number; and

(b) Permanent Account Number or Form 60 as defined
in the Income Tax Rules, 1962,

issued to the person holding an attorney to transact on its
behalf or where Aadhaar number has not been assigned,
proof of application towards enrolment for Aadhaar and in
case the Permanent Account Number is not submitted an
officially valid document shall be submitted; and

(iv) such information as may be required by the reporting
entity to collectively establish the legal existence of such an
association or body of individuals:

Provided that for the purpose of this clause if the
person holding an attorney to transact on the company’s

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 508 of 567

behalf is not eligible to be enrolled for Aadhaar number and
does not submit the Permanent Account Number, certified
copy of an officially valid document shall be submitted.”

(c) after sub-rule (14), the following sub-rules shall be
inserted, namely,-

(15) Any reporting entity, at the time of receipt of the
Aadhaar number under provisions of this rule, shall carry
out authentication using either e-KYC authentication facility
or Yes/No authentication facility provided by Unique
Identification Authority of India.

(16) In case the client referred to in sub-rules (4) to (9) of
rule 9 is not a resident or is a resident in the States of
Jammu and Kashmir, Assam or Meghalaya and does not
submit the Permanent Account Number, the client shall
submit to the reporting entity one certified copy of officially
valid document containing details of his identity and
address, one recent photograph and such other document
including in respect of the nature of business and financial
status of the client as may be required by the reporting
entity.

(17) (a) In case the client, eligible to be enrolled for
Aadhaar and obtain a Permanent Account Number,
referred to in sub-rules (4) to (9) of rule 9 does not submit
the Aadhaar number or the Permanent Account Number at
the time of commencement of an account based
relationship with a reporting entity, the client shall submit
the same within a period of six months from the date of the
commencement of the account based relationship:

Provided that the clients, eligible to be enrolled for
Aadhaar and obtain the Permanent Account Number,
already having an account based relationship with
reporting entities prior to date of this notification, the client
shall submit the Aadhaar number and Permanent Account
Number by 31st December, 2017.

(b) As per regulation 12 of the Aadhaar (Enrolment and
Update) Regulations, 2016, the local authorities in the
State Governments or Union-territory Administrations have
become or are in the process of becoming UIDAI
Registrars for Aadhaar enrolment and are organising
special Aadhaar enrolment camps at convenient locations
for providing enrolment facilities in consultation with UIDAI

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 509 of 567

and any individual desirous of commencing an account
based relationship as provided in this rule, who does not
possess the Aadhaar number or has not yet enrolled for
Aadhaar, may also visit such special Aadhaar enrolment
camps for Aadhaar enrolment or any of the Aadhaar
enrolment centres in the vicinity with existing registrars of
UIDAI.

(c) In case the client fails to submit the Aadhaar number
and Permanent Account Number within the aforesaid six
months period, the said account shall cease to be
operational till the time the Aadhaar number and
Permanent Account Number is submitted by the client:

Provided that in case client already having an
account based relationship with reporting entities prior to
date of this notification fails to submit the Aadhaar number
and Permanent Account Number by 31st December, 2017,
the said account shall cease to be operational till the time
the Aadhaar number and Permanent Account Number is
submitted by the client.

(18) In case the identity information relating to the
Aadhaar number or Permanent Account Number submitted
by the client referred to in sub-rules (4) to (9) of rule 9 does
not have current address of the client, the client shall
submit an officially valid documents to the reporting entity.”

As can be seen from the above, linking of Aadhaar with the

bank account is now mandatory. It applies not only to those bank

accounts which would be opened after the bringing into force the

amendment but even the existing accounts as well.

427) Linking of a banking account to Aadhaar is challenged as

violative of
Articles 14
, 19(1)(g)
and
of the Constitution and

also of
Prevention of Money Laundering Act, 2002
. Elaborate

submissions were made by Mr. Arvind Datar on the aforesaid

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 510 of 567

aspects. It was argued that those persons who do not choose to

enrol for Aadhaar number would not be in a position to open the

bank account or even operate the existing bank account and

there is no valid explanation as to why all bank accounts had to

be authenticated. It was also argued that provisions of the Rule

referred to companies, firms, trust etc. as well, though the

Aadhaar Act is meant for establishing identity of individuals only.

It was further submitted that in case a person fails to link Aadhaar

with the bank account, such person would be rendered ineligible

to operate the bank account, which would amount to forfeiting her

money lying in the account which belongs to her. This amounts

to depriving the person from her property and is, therefore,

violative of
Article 300A
of the Constitution as such a deprivation

can take place only by primary legislation and not by subordinate

legislation in the form of Rules. Much emphasis was also laid on

the argument that the amended Rule does not pass the

proportionality test.

428) Mr. Tushar Mehta, learned Additional Solicitor General, refuted

the aforesaid submissions. He pointed out the objective with

which the
Prevention of Money Laundering Act
was enacted,

namely, to curb money laundering and black money, which is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 511 of 567

becoming a menace. Therefore, the amendment to Rules serves

a legitimate State aim. He argued that the Rules are not arbitrary

and satisfies the proportionality test also, having regard to the

laudable objective which it seeks to serve.

429) After giving our thoughtful consideration to the various aspects,

we feel that it is not even necessary to deal with each and every

contention raised by the petitioners. Our considered opinion is

that it does not meet the test of proportionality and is also

violative of right to privacy of a person which extends to banking

details.

430) This Court has held in
Ram Jethmalani & Ors. v. Union of India &

Ors.155
that revelation of bank details without prima facie ground

of wrong doing would be violative of right to privacy. The said

decision has been approved in K.S. Puttaswamy. Under the garb

of prevention of money laundering or black money, there cannot

be such a sweeping provision which targets every resident of the

country as a suspicious person. Presumption of criminality is

treated as disproportionate and arbitrary.

431) Nobody would keep black money in the bank account. We

accept the possibility of opening an account in an assumed name

155(2011) 8 SCC 1

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 512 of 567

and keeping black money therein which can be laundered as

well. However, the persons doing such an Act, if at all, would be

very few. More importantly, those having bank accounts with

modest balance and routine transactions can be safely ruled out.

Therefore, the provision in the present form does not meet the

test of proportionality. Therefore, for checking this possible

malice, there cannot be a mandatory provision for linking of every

bank account.

432) In
Lal Babu Hussein v. Electoral Registration Officer and

Others156
, this Court had struck down the order of the Electoral

Officer asking the residents of a particular en masse to prove

their identity as unconstitutional. The Court held that the

Electoral officer asking residents of a particular area en masse to

prove their identity was unconstitutional. In the case, the EO

went on the assumption that all inhabitants of a particular area

were foreigners, notwithstanding their name appearing in earlier

electoral rolls. The court held the following:

(a) Right to vote cannot be disallowed by insisting only on 4

proofs of identity-voters can rely on any other proof of identity and

obtain right to vote.

(b) Notices were quashed because they failed to distinguish

156(1995) 3 SCC 100

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 513 of 567

between existing voters who had voted several times and new

voters.

(c) Large-scale presumption of illegality impermissible.

433) This linking is made compulsory not only for opening a new bank

account but even for existing bank accounts with a stipulation that

if the same is not done then the account would be deactivated,

with the result that the holder of the account would not be entitled

to operate the bank account till the time seeding of the bank

account with Aadhaar is done. This amounts to depriving a

person of his property. We find that this move of mandatory

linking of Aadhaar with bank account does not satisfy the test of

proportionality. To recapitulate, the test of proportionality requires

that a limitation of the fundamental rights must satisfy the

following to be proportionate: (i) it is designated for a proper

purpose; (ii) measures are undertaken to effectuate the limitation

are rationally connected to the fulfilment of the purpose; (iii) there

are no alternative less invasive measures; and (iv) there is a

proper relation between the importance of achieving the aim and

the importance of limiting the right.

434) The Rules are disproportionate for the following reasons:

(a) a mere ritualistic incantation of “money laundering”, “black

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 514 of 567

money” does not satisfy the first test;

(b) no explanations have been given as to how mandatory

linking of every bank account will eradicate/reduce the problems

of “money laundering” and “black money”;

(c) there are alternative methods of KYC which the banks are

already undertaking, the state has not discharged its burden as to

why linking of Aadhaar is imperative. We may point out that RBI’s

own Master Direction (KYC Direction, 2016) No. DBR.AML.BC.

No. 81/14.01.001/2015-16 allows using alternatives to Aadhaar to

open bank accounts.

435) There may be legitimate State aim for such a move as it aims at

prevention of money laundering and black money. However,

there has not been a serious thinking while making such a

provision applicable for every bank account. Maintaining back

account in today’s world has almost become a necessity. The

Government itself has propagated the advantages thereof and is

encouraging people to open the bank account making it possible

to have one even with Zero Balance under the Pradhan Mantri

Jan Dhan Yojana. The Government has taken various measures

to give a boost to digital economy. Under these schemes,

millions of persons, who are otherwise poor, are opening their

bank accounts. They are also becoming habitual to the good

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 515 of 567

practice of entering into transactions through their banks and

even by using digital modes for operation of the bank accounts.

Making the requirement of Aadhaar compulsory for all such and

other persons in the name of checking money laundering or black

money is grossly disproportionate. There should have been a

proper study about the methods adopted by persons who indulge

in money laundering, kinds of bank accounts which such persons

maintain and target those bank accounts for the purpose of

Aadhaar. It has not been done.

436) We, thus, hold the amendment to Rule 9, by the Seventh

Amendment Rules, 2017, in the present form, to be

unconstitutional.

Linking of Mobile Number with Aadhaar

437) By a Circular dated March 23, 2017, the Department of

Telecommunications has directed that all licensees shall reverify

the existing mobile subscribers (pre-paid and post-paid) through

Aadhaar based e-KYC process. In fine, it amounts to mandatory

linking of mobile connections with Aadhaar, which requirement is

not only in respect of those individuals who would be becoming

mobile subscribers, but applies to existing subscribers as well.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 516 of 567

438) It was the submission of the petitioners that such a linking of the

SIM card with Aadhaar number violates their right to privacy. It is

argued that since it is a fundamental right, the restrictions/curb

thereupon in the form of said linking does not satisfy the tests
laid

down in
K.S. Puttaswamy inasmuch as it is neither backed by any

law nor it serves any legitimate state aim nor does it meet the

requirement of proportionality test.

439) At the outset, it may be mentioned that the respondents have not

been able to show any statutory provision which permits the

respondents to issue such a circular. It is administrative in

nature. The respondents have, however, tried to justify the same

on the ground that there have been numerous instances where

non-verification of SIM cards have posed serious security threats.

Having regard to the same, this Court had given direction in

Lokniti Foundation v. Union of India & Anr.157
for the linking of SIM

card with Aadhaar and it is pursuant to those directions that the

Telecom Regulatory Authority of India (TRAI) recommended this

step. Therefore, as per the respondents, Circular dated March

23, 2017 is the outcome of the aforesaid directions and

recommendations which should be treated as backing of law.

According to them, direction of this Court is a law under
Article

157 (2017) 7
SCC 155

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 517 of 567

141 of the Constitution. In addition, it is also argued that since

Section 4
of the Indian Telegraph Act, 1885 empowers the

Central Government to issue licenses for establishing,

maintaining and working telegraphs, it is within the power of the

Central Government to grant such licenses with condition and,

therefore, Circular dated March 23, 2017 may be read as

condition for grant of licenses. On this premise, attempt is to

show that the Circular is issued in exercise of the powers

contained in
Section 4
of the Indian Telegraph Act, 1885 which is

the force of law.

440) In order to appreciate the respondents’ contentions, we

reproduce the relevant portion of Circular dated March 23, 2017,

which reads as under:

“Hon’ble Supreme Court, in its order dated 06.02.2017
passed in Writ Petition (C) No. 607/2016 filed by
Lokniti
Foundation v/s Union of India
, while taking into cognizance
of “Aadhaar based e-KYC process for issuing new
telephone connection” issued by the Department, has inter-
alia observed that “an effective process has been evolved
to ensure identity verification, as well as, the addresses of
all mobile phone subscribers for new subscribers. In the
near future, and more particularly, within one year from
today, a similar verification will be completed, in case of
existing subscribers.” This amounts to a direction which is
to be completed within a time frame of one year.

2. A meeting was held on 13.02.2017 in the Department
with the telecom industry wherein UIDAI, TRAI and PMO
representatives also participated to discuss the way
forward to implement the directions of Hon’ble Supreme
Court. Detailed discussions and deliberations were held in

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 518 of 567

the meeting. The suggestions received from the industry
have been examined in the Department.

3. Accordingly, after taking into consideration the
discussions held in the meeting and suggestions received
from telecom industry, the undersigned is directed to
convey the approval of competent authority that all
Licensees shall re-verify all existing mobile subscribers
(prepaid and postpaid) through Aadhaar based e-KYC
process as mentioned in this office letter No. 800-29/2010-

VAS dated 16.08.2016. The instructions mentioned in
subsequent paragraphs shall be strictly followed while
carrying out the re-verification exercise.”

441) In the first instance, it may be noticed that reference is made to

the judgment of this Court in Lokniti Foundation which has

prompted the Ministry of Communications to issue this circular.

Paragraph 1 of the Circular itself states that the observations of

the Court in Lokniti Foundation amount to a direction. Thus, the

Circular is not issued in exercise of powers under
Section 4
of the

Indian Telegraph Act, 1885 (though that itself would be debatable

as to whether
Section 4
gives such a power at all). Insofar as

observations of this Court
in that case
are concerned, it is clear

that in the said brief order, this Court did not go into the issue as

to whether linking of SIM card with Aadhaar would be violate of

privacy rights of the citizens. In that petition filed as a Public

Interest Litigation, a prayer was made to the effect that identity of

each subscriber and also the numbers should be verified so that

unidentified and unverified subscribers are not allowed to misuse

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 519 of 567

mobile numbers. In response, the Union of India had filed the

counter affidavit bringing to the notice of the Court that the

Department had launched Aadhaar based e-KYC for issuing

mobile connections. Based on this statement, orders were

passed by this Court. Lis, which is the subject matter of instant

petitions, was not raised in the said case. Obviously, the Court

did not deliberate on the aspects of necessity of such a provision

in the light of right to privacy. It was a case where both the sides

were at ad idem. In the absence of any such issue or discussion

thereupon, such a case cannot be treated as precedent and as a

corollary it cannot be termed as ‘law’ within the meaning of
Article
or
Article 141
of the Constitution. Moreover, we are unable to

read the order in Lokniti Foundation as a direction of the Court. It

simply disposed of the petition after recording the submission of

the Union of India to the effect that the grievance of the petitioner

therein stood redressed by evolving the procedure of linking. On

that the Court simply observed that undertaking given to this

Court will be seriously taken and given effect to. No doubt, the

Central Government, as a licensor, can impose conditions while

granting licenses under
Section 4
of the Indian Telegraph Act,

1885. However, such directions/conditions have to be legally

valid. When it affects the rights of the third parties (like the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 520 of 567

petitioners herein who are not party to the licenses granted by the

Government to the Telecom Service Providers) they have a right

to challenge such directions. Here, the case made out by the

petitioners is that it infringes their right to privacy.

442) We are of the opinion that not only such a circular lacks backing

of a law, it fails to meet the requirement of proportionality as well.

It does not meet ‘necessity stage’ and ‘balancing stage’ tests to

check the primary menace which is in the mind of the respondent

authorities. There can be other appropriate laws and less

intrusive alternatives. For the misuse of such SIM cards by a

handful of persons, the entire population cannot be subjected to

intrusion into their private lives. It also impinges upon the

voluntary nature of the Aadhaar scheme. We find it to be

disproportionate and unreasonable state compulsion. It is to be

borne in mind that every individual/resident subscribing to a SIM

card does not enjoy the subsidy benefit or services mentioned in

Section 7
of the Act.

We, therefore, have no hesitation in declaring the Circular

dated March 23, 2017 as unconstitutional.

Violation of the orders passed by this Court:

Whether certain actions of the respondents are in contravention
of the interim orders passed by the Court, if so, the effect

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 521 of 567

thereof?

443) It was vehemently argued that this Court had passed number of

interim orders (which have already been taken note of in the

beginning of this judgment) categorically stating that the Aadhaar

enrolment is voluntary; that no person would be forced to enrol

under the scheme; that a person would be told about the

voluntary nature of the scheme; and that enrolment shall not be

given to any illegal migrant. As per the petitioners,

notwithstanding these orders, the Central Government as well as

the State Governments have issued various notifications

requiring Aadhaar authentication for benefits, subsidies and

schemes mandatory. In this manner, according to the petitioners,

the respondents have violated the orders of this Court and it is

the majesty of the Court which is at stake.

444) It is not in dispute that the aforesaid orders were passed when

the Aadhaar Act had not come into force. After the enactment,

Section 7
had altered the position statutorily. The notifications

and circulars etc. are issued under this provision. Therefore,

technically speaking, it cannot be held that these circulars are

issued in contravention of the orders passed by this Court.

445) We feel that it would have been better had a clarification been

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 522 of 567

obtained from the Court after the passing of the Aadhaar Act

before issuing such circulars and orders under
Section 7
. When

the matter is sub judice in the Court and certain orders operating,

the respondents should have shown some fairness by taking that

route, which expectation would be high where the respondent is

the State. However, it would be difficult to hold the respondents

in contempt of the orders passed by this Court. We may note

that similar argument was advanced in Binoy Viswam, namely,

insertion of
Section 139AA
in the
Income Tax Act
was in breach of

interim orders passed by this Court. This argument was repelled

in the following manner:

“99. Main emphasis, however, is on the plea that
Parliament or any State Legislature cannot pass a law that
overrules a judgment thereby nullifying
the said decision
,
that too without removing the basis of the decision. This
argument appears to be attractive inasmuch as few orders
are passed by this Court in pending writ petitions which are
to the effect that the enrolment of Aadhaar would be
voluntary. However, it needs to be kept in mind that the
orders have been passed in the petitions where Aadhaar
Scheme floated as an executive/administrative measure
has been challenged. In those cases, the said orders are
not passed in a case where the Court was dealing with a
statute passed by Parliament. Further, these are interim
orders as the Court was of the opinion that till the matter is
decided finally in the context of right to privacy issue, the
implementation of the said Aadhaar Scheme would remain
voluntary. In fact, the main issue as to whether Aadhaar
card scheme whereby biometric data of an individual is
collected violates right to privacy and, therefore, is
offensive of
Article 21
of the Constitution or not is yet to be
decided. In the process, the Constitution Bench is also
called upon to decide as to whether right to privacy is a
part of
Article 21
of the Constitution at all. Therefore, no

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 523 of 567

final decision has been taken. In a situation like this, it
cannot be said that Parliament is precluded from or it is
rendered incompetent to pass such a law. That apart, the
argument of the petitioners is that the basis on which the
aforesaid orders are passed has to be removed, which is
not done. According to the petitioners, it could be done only
by making the Aadhaar Act compulsory. It is difficult to
accept this contention for two reasons: first, when the
orders passed by this Court which are relied upon by the
petitioners were passed when the Aadhaar Act was not
even enacted. Secondly, as already discussed in detail
above, the Aadhaar Act and the law contained in
Section
139-AA
of the Income Tax Act deal with two different
situations and operate in different fields. This argument of
legislative incompetence also, therefore, fails.”

Summary and Conclusions:

446) (a) The architecture and structure of the Aadhaar Act reveals

that the UIDAI is established as a statutory body which is given

the task of developing the policy, procedure and system for

issuing Aadhaar numbers to individuals and also to perform

authentication thereof as per the provisions of the Act. For the

purpose of enrolment and assigning Aadhaar numbers, enrolling

agencies are recruited by the Authority. All the residents in India

are eligible to obtain an Aadhaar number. To enable a resident to

get Aadhaar number, he is required to submit demographic as

well as biometric information i.e., apart from giving information

relating to name, date of birth and address, biometric information

in the form of photograph, fingerprint, iris scan is also to be

provided. Aadhaar number given to a particular person is treated

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 524 of 567

as unique number as it cannot be reassigned to any other

individual.

(b) Insofar as subsidies, benefits or services to be given by the

Central Government or the State Government, as the case may

be, is concerned, these Governments can mandate that receipt of

these subsidies, benefits and services would be given only on

furnishing proof of possession of Aadhaar number (or proof of

making an application for enrolment, where Aadhaar number is

not assigned). An added requirement is that such individual

would undergo authentication at the time of receiving such

benefits etc. A particular institution/body from which the aforesaid

subsidy, benefit or service is to be claimed by such an individual,

the intended recipient would submit his Aadhaar number and is

also required to give her biometric information to that agency. On

receiving this information and for the purpose of its

authentication, the said agency, known as Requesting Entity

(RE), would send the request to the Authority which shall perform

the job of authentication of Aadhaar number. On confirming the

identity of a person, the individual is entitled to receive subsidy,

benefit or service. Aadhaar number is permitted to be used by

the holder for other purposes as well.

(c) In this whole process, any resident seeking to obtain an

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 525 of 567

Aadhaar number is, in the first instance, required to submit her

demographic information and biometric information at the time of

enrolment. She, thus, parts with her photograph, fingerprint and

iris scan at that stage by giving the same to the enrolling agency,

which may be a private body/person. Likewise, every time when

such Aadhaar holder intends to receive a subsidy, benefit or

service and goes to specified/designated agency or person for

that purpose, she would be giving her biometric information to

that RE, which, in turn, shall get the same authenticated from the

Authority before providing a subsidy, benefit or service.

(d) Attack of the petitioners to the Aadhaar programme and its

formation/structure under the Aadhaar Act is founded on the

arguments that it is a grave risk to the rights and liberties of the

citizens of this country which are secured by the Constitution of

India. It militates against the constitutional abiding values and its

foundational morality and has the potential to enable an intrusive

state to become a surveillance state on the basis of information

that is collected in respect of each individual by creation of a joint

electronic mesh. In this manner, the Act strikes at the very

privacy of each individual thereby offending the right to privacy

which is elevated and given the status of fundamental right by

tracing it to
Articles 14
, 19
and
of the Constitution of India by a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 526 of 567

nine Judge Bench judgment of this Court in K.S. Puttaswamy.

(e) The respondents, on the other hand, have attempted to

shake the very foundation of the aforesaid structure of the

petitioners’ case. They argue that in the first instance, minimal

biometric information of the applicant, who intends to have

Aadhaar number, is obtained which is also stored in CIDR for the

purpose of authentication. Secondly, no other information is

stored. It is emphasised that there is no data collection in respect

of religion, caste, tribe, language records of entitlement, income

or medical history of the applicant at the time of Aadhaar

enrolment. Thirdly, the Authority also claimed that the entire

Aadhaar enrolment eco-system is foolproof inasmuch as within

few seconds of the biometrics having been collected by the

enrolling agency, the said information gets transmitted the

Authorities/CIDR, that too in an encrypted form, and goes out of

the reach of the enrolling agency. Same is the situation at the

time of authentication as biometric information does not remain

with the requesting agency. Fourthly, while undertaking the

authentication process, the Authority simply matches the

biometrics and no other information is received or stored in

respect of purpose, location or nature or transaction etc.

Therefore, the question of profiling does not arise at all.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 527 of 567

(f) In the aforesaid scenario, it is necessary, in the first

instance, to find out the extent of core information, biometric as

well as demographic, that is collected and stored by the Authority

at the time of enrolment as well as at the time of authentication.

This exercise becomes necessary in order to consider the

argument of the petitioners about the profiling of the Aadhaar

holders. On going through this aspect, on the basis of the

powerpoint presentation given by Dr. Ajay Bhushan Pandey, CEO

of UIDAI, and the arguments of both the sides, including the

questions which were put by the petitioners to Dr. Pandey and the

answers thereupon, the Court has come to the conclusion that

minimal possible data, demographic and biometric, is obtained

from the Aadhaar holders.

(g) The Court also noticed that the whole architecture of Aadhaar

is devised to give unique identity to the citizens of this country.

No doubt, a person can have various documents on the basis of

which that individual can establish her identify. It may be in the

form of a passport, PAN card, ration card and so on. For the

purpose of enrolment itself number of documents are prescribed

which an individual can produce on the basis of which Aadhaar

card can be issued. Thus, such documents, in a way, are also

proof of identity. However, there is a fundamental difference

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 528 of 567

between the Aadhaar card as a mean of identity and other

documents through which identity can be established. Enrolment

for Aadhaar card also requires giving of demographic information

as well as biometric information which is in the form of iris and

fingerprints. This process eliminates any chance of duplication.

It is emphasised that an individual can manipulate the system by

having more than one or even number of PAN cards, passports,

ration cards etc. When it comes to obtaining Aadhaar card, there

is no possibility of obtaining duplicate card. Once the biometric

information is stored and on that basis Aadhaar card is issued, it

remains in the system with the Authority. Wherever there would

be a second attempt for enrolling for Aadhaar and for this

purpose same person gives his biometric information, it would be

immediately get matched with the same biometric information

already in the system and the second request would stand

rejected. It is for this reason the Aadhaar card is known as

Unique Identification (UID). Such an identity is unparalleled.

(h) There is, then, another purpose for having such a system of

issuing unique identification cards in the form of Aadhaar card. A

glimpse thereof is captured under the heading ‘Introduction’

above, while mentioning how and under what circumstances the

whole project was conceptualised. To put it tersely, in addition to

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 529 of 567

enabling any resident to obtain such unique identification proof, it

is also to empower marginalised section of the society,

particularly those who are illiterate and living in abject poverty or

without any shelter etc. It gives identity to such persons also.

Moreover, with the aid of Aadhaar card, they can claim various

privileges and benefits etc. which are actually meant for these

people.

(i) Identity of a person has a significance for every individual in

his/her life. In a civilised society every individual, on taking birth,

is given a name. Her place of birth and parentage also becomes

important as she is known in the society and these demographic

particulars also become important attribute of her personality.

Throughout their lives, individuals are supposed to provide such

information: be it admission in a school or college or at the time of

taking job or engaging in any profession or business activity, etc.

When all this information is available in one place, in the form of

Aadhaar card, it not only becomes unique, it would also qualify as

a document of empowerment. Added with this feature, when an

individual knows that no other person can clone her, it assumes

greater significance.

(j) Thus, the scheme by itself can be treated as laudable when

it comes to enabling an individual to seek Aadhaar number, more

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 530 of 567

so, when it is voluntary in nature. Howsoever benevolent the

scheme may be, it has to pass the muster of constitutionality.

According to the petitioners, the very architecture of Aadhaar is

unconstitutional on various grounds.

(k) The Court has taken note of the heads of challenge of the

Act, Scheme and certain Rules etc. and clarified that the matter is

examined with objective examination of the issues on the

touchstone of the constitutional provisions, keeping in mind the

ethos of constitutional democracy, rule of law, human rights and

other basic features of the Constitution.

Discussing the scope of judicial review, the Court has

accepted that apart from two grounds noticed in Binoy Viswam,

on which legislative Act can be invalidated [(a) the Legislature

does not have competence to make the law; and b) law made is

in violation of fundamental rights or any other constitutional

provision], another ground, namely, manifest arbitrariness, can

also be the basis on which an Act can be invalidated. The issues

are examined having regard to the aforesaid scope of judicial

review.

(l) From the arguments raised by the petitioners and the

grounds of challenge, it becomes clear that the main plank of

challenge is that the Aadhaar project and the Aadhaar Act

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 531 of 567

infringes right to privacy. Inbuilt in this right to privacy is the right

to live with dignity, which is a postulate of right to privacy. In the

process, discussion leads to the issue of proportionality, viz.

whether measures taken under the Aadhaar Act satisfy the

doctrine of proportionality.

(m) In view of the above, the Court discussed the contours of

right to privacy, as
laid down in
K.S. Puttaswamy, principle of

human dignity and doctrine of proportionality. After taking note of

the discussion contained in different opinions of six Hon’ble

Judges, it stands established, without any pale of doubt, that

privacy has now been treated as part of fundamental right. The

Court has held that, in no uncertain terms, that privacy has

always been a natural right which given an individual freedom to

exercise control over his or her personality. The judgment further

affirms three aspects of the fundamental right to privacy, namely:

(i) intrusion with an individual’s physical body,

(ii) informational privacy and

(iii) privacy of choice.

(n) As succinctly put by Nariman, J., first aspect involves the

person himself/herself and guards a person’s rights relatable to

his physical body thereby controlling the uncalled invasion by the

State. Insofar as second aspect, namely, informational privacy is

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 532 of 567

concerned, it does not deal with a person’s body but deals with a

person’s mind. In this manner, it protects a person by giving her

control over the dissemination of material that is personal to her

and disallowing unauthorised use of such information by the

State. Third aspect of privacy relates to individual’s autonomy by

protecting her fundamental personal choices. These aspects

have functional connection and relationship with dignity. In this

sense, privacy is a postulate of human dignity itself. Human

dignity has a constitutional value and its significance is

acknowledged by the Preamble. Further, by catena of judgments,

human dignity is treated as fundamental right as a facet not only

of
Article 21
, but that of right to equality (
Article 14
) and also part

of bouquet of freedoms stipulated in
Article 19.
Therefore, privacy

as a right is intrinsic of freedom, liberty and dignity. Viewed in this

manner, one can trace positive and negative contents of privacy.

The negative content restricts the State from committing an

intrusion upon the life and personal liberty of a citizen. Its positive

content imposes an obligation on the State to take all necessary

measures to protect the privacy of the individual.

(o) In developing the aforesaid concepts, the Court has been

receptive to the principles in international law and international

instruments. It is a recognition of the fact that certain human

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 533 of 567

rights cannot be confined within the bounds of geographical

location of a nation but have universal application. In the

process, the Court accepts the concept of universalisation of

human rights, including the right to privacy as a human right and

the good practices in developing and understanding such rights in

other countries have been welcomed. In this hue, it can also be

remarked that comparative law has played a very significant role

in shaping the aforesaid judgment on privacy in Indian context,

notwithstanding the fact that such comparative law has only

persuasive value.

The whole process of reasoning contained in different

opinions of the Hon’ble Judges would, thus, reflect that the

argument that it is difficult to precisely define the common

denominator of privacy, was rejected. While doing so, the Court

referred to various approaches to formulating privacy

(p) We have also remarked above, the taxonomy of privacy,

namely, on the basis of ‘harms’, ‘interest’ and ‘aggregation of

rights’. We have also discussed the scope of right to privacy with

reference to the cases at hand and the circumstances in which

such a right can be limited. In the process, we have also taken

note of the passage from the judgment rendered by Nariman, J.

in K.S. Puttaswamy stating the manner in which law has to be

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 534 of 567

tested when it is challenged on the ground that it violates the

fundamental right to privacy.

(q) One important comment which needs to be made at this

stage relates to the standard of judicial review while examining

the validity of a particular law that allegedly infringes right to

privacy. The question is as to whether the Court is to apply ‘strict

scrutiny’ standard or the ‘just, fair and reasonableness’ standard.

In the privacy judgment, different observations are made by the

different Hon’ble Judges and the aforesaid aspect is not

determined authoritatively, may be for the reason that the Bench

was deciding the reference on the issue as to whether right to

privacy is a fundamental right or not and, in the process, it was

called upon to decide the specific questions referred to it. This

Court preferred to adopt a ‘just, fair and reasonableness’

standard which is in tune with the view expressed by majority of

Judges in their opinion. Even otherwise, this is in consonance

with the judicial approach adopted by this Court while construing

‘reasonable restrictions’ that the State can impose in public

interest, as provided in
Article 19
of the Constitution. Insofar as

principles of human dignity are concerned, the Court, after taking

note of various judgments where this principle is adopted and

elaborated, summed up the essential ingredients of dignity

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 535 of 567

jurisprudence by noticing that the basic principle of dignity and

freedom of the individual is an attribute of natural law which

becomes the right of all individuals in a constitutional democracy.

Dignity has a central normative role as well as constitutional

value. This normative role is performed in three ways:

First, it becomes basis for constitutional rights;

Second, it serves as an interpretative principle for

determining the scope of constitutional rights; and,

Third, it determines the proportionality of a statute limiting a

constitutional right. Thus, if an enactment puts limitation on a

constitutional right and such limitation is disproportionate, such a

statute can be held to be unconstitutional by applying the doctrine

of proportionality.

(r) As per Dworkin, there are two principles about the concept

of human dignity, First principle regards an ‘intrinsic value’ of

every person, namely, every person has a special objective value

which value is not only important to that person alone but success

or failure of the lives of every person is important to all of us. It

can also be described as self respect which represents the free

will of the person, her capacity to think for herself and to control

her own life. The second principle is that of ‘personal

responsibility’, which means every person has the responsibility

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 536 of 567

for success in her own life and, therefore, she must use her

discretion regarding the way of life that will be successful from her

point of view.

(s) Sum total of this exposition can be defined by explaining

that as per the aforesaid view dignity is to be treated as

‘empowerment’ which makes a triple demand in the name of

‘respect’ for human dignity, namely:

(i) respect for one's capacity as an agent to make one's own

free choices;

(ii) respect for the choices so made; and

(iii) respect for one's need to have a context and conditions

in which one can operate as a source of free and informed

choice.

(t) In the entire formulation of dignity right, ‘respect’ for an

individual is the fulcrum, which is based on the principle of

freedom and capacity to make choices and a good or just social

order is one which respects dignity via assuring ‘contexts’ and

‘conditions’ as the ‘source of free and informed choice’. The

aforesaid discourse on the concept of human dignity is from an

individual point of view. That is the emphasis of the petitioners as

well. That would be one side of the coin. A very important

feature which the present case has brought into focus is another

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 537 of 567

dimension of human dignity, namely, in the form of ‘common

good’ or ‘public good’. Thus, our endeavour here is to give richer

and more nuanced understanding to the concept of human

dignity.

(u) We, therefore, have to keep in mind humanistic concept of

Human Dignity which is to be accorded to a particular segment of

the society and, in fact, a large segment. Their human dignity is

based on the socio-economic rights that are read in to the

Fundamental Rights as already discussed above.

When we read socio-economic rights into human dignity,

the community approach also assumes importance along with

individualistic approach to human dignity. It has now been well

recognised that at its core, human dignity contains three

elements, namely, Intrinsic Value, Autonomy and Community

Value. These are known as core values of human dignity. These

three elements can assist in structuring legal reasoning and

justifying judicial choices in ‘hard cases’.

(v) When it comes to dignity as a community value, it

emphasises the role of the community in establishing collective

goals and restrictions on individual freedoms and rights on behalf

of a certain idea of good life. The relevant question here is in

what circumstances and to what degree should these actions be

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 538 of 567

regarded as legitimate in a constitutional democracy? The liberal

predicament that the state must be neutral with regard to different

conceptions of the good in a plural society is not incompatible, of

course, with limitation resulting from the necessary coexistence of

different views and potentially conflicting rights. Such

interferences, however, must be justified on grounds of a

legitimate idea of justice, an “overlapping consensus” 158 that can

be shared by most individuals and groups. Whenever such

tension arises, the task of balancing is to be achieved by the

Courts.

We would like to highlight one more significant feature

which the issues involved in the present case bring about. It is

the balancing of two facets of dignity of the same individual.

Whereas, on the one hand, right of personal autonomy is a part of

dignity (and right to privacy), another part of dignity of the same

individual is to lead a dignified life as well (which is again a facet

of
Article 21
of the Constitution). Therefore, in a scenario where

the State is coming out with welfare schemes, which strive at

giving dignified life in harmony with human dignity and in the

process some aspect of autonomy is sacrificed, the balancing of

the two becomes an important task which is to be achieved by the
158“Overlapping consensus” is a term coined by John Rawls that identifies basic ideas of justice
that can be shared by supporters of different religious, political, and moral comprehensive
doctrines.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 539 of 567

Courts. For, there cannot be undue intrusion into the autonomy

on the pretext of conferment of economic benefits.

(w) In this way, the concept of human dignity has been widened

to deal with the issues at hand. As far as doctrine of

proportionality is concerned, after discussing the approaches that

are adopted by the German Supreme Court and the Canadian

Supreme Court, which are somewhat different from each other,

this Court has applied the tests as
laid down in
Modern Dental

College & Research Centre, which are approved in K.S.

Puttaswamy as well. However, at the same time, a modification

is done by focusing on the parameters set down of Bilchitz which

are aimed at achieving a more ideal approach.

447) After stating the aforesaid manner in which different issues that

arose are specified and discussed, these questions and

conclusions thereupon are summarised below:

(1) Whether the Aadhaar Project creates or has tendency to
create surveillance state and is, thus, unconstitutional on this
ground?

Incidental Issues:

(a) What is the magnitude of protection that need 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 minimisation,
purpose limitation, time period for data retention and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 540 of 567

data protection and security?

Answer:

(a) The architecture of Aadhaar as well as the provisions of the

Aadhaar Act do not tend to create a surveillance state. This is

ensured by the manner in which the Aadhaar project operates.

(b) We have recorded in detail the powerpoint presentation that

was given by Dr. Ajay Bhushan Pandey, CEO of the Authority,

which brings out the following salient features:

(i) During the enrolment process, minimal biometric data in the

form of iris and fingerprints is collected. The Authority does not

collect purpose, location or details of transaction. Thus, it is

purpose blind. The information collected, as aforesaid, remains

in silos. Merging of silos is prohibited. The requesting agency is

provided answer only in ‘Yes’ or ‘No’ about the authentication of

the person concerned. The authentication process is not

exposed to the Internet world. Security measures, as per the

provisions of Section 29(3) read with Section 38(g) as well as

Regulation 17(1)(d) of the Authentication Regulations, are strictly

followed and adhered to.

(ii) There are sufficient authentication security measures taken

as well, as demonstrated in Slides 14, 28 and 29 of the

presentation.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 541 of 567

(iii) The Authority has sufficient defence mechanism, as

explained in Slide 30. It has even taken appropriate protection

measures as demonstrated in Slide 31.

(iv) There is an oversight by Technology and Architecture

Review Board (TARB) and Security Review Committee.

(v) During authentication no information about the nature of

transaction etc. is obtained.

(vi) The Authority has mandated use of Registered Devices

(RD) for all authentication requests. With these, biometric data is

signed within the device/RD service using the provider key to

ensure it is indeed captured live. The device provider RD service

encrypts the PID block before returning to the host application.

This RD service encapsulates the biometric capture, signing and

encryption of biometrics all within it. Therefore, introduction of

RD in Aadhaar authentication system rules out any possibility of

use of stored biometric and replay of biometrics captured from

other source. Requesting entities are not legally allowed to store

biometrics captured for Aadhaar authentication under
Regulation

17(1)(a)
of the Authentication Regulations.

(vii) The Authority gets the AUA code, ASA code, unique device

code, registered device code used for authentication. It does not

get any information related to the IP address or the GPS location

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 542 of 567

from where authentication is performed as these parameters are

not part of authentication (v2.0) and e-KYC (v2.1) API. The

Authority would only know from which device the authentication

has happened, through which AUA/ASA etc. It does not receive

any information about at what location the authentication device

is deployed, its IP address and its operator and the purpose of

authentication. Further, the authority or any entity under its

control is statutorily barred from collecting, keeping or maintaining

any information about the purpose of authentication under

Section 32(3) of the Aadhaar Act.

(c) After going through the Aadhaar structure, as demonstrated

by the respondents in the powerpoint presentation from the

provisions of the Aadhaar Act and the machinery which the

Authority has created for data protection, we are of the view that it

is very difficult to create profile of a person simply on the basis of

biometric and demographic information stored in CIDR. Insofar as

authentication is concerned, the respondents rightly pointed out

that there are sufficient safeguard mechanisms. To recapitulate, it

was specifically submitted that there was security technologies in

place (slide 28 of Dr. Pandey’s presentation), 24/7 security

monitoring, data leak prevention, vulnerability management

programme and independent audits (slide 29) as well as the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 543 of 567

Authority’s defence mechanism (slide 30). It was further pointed

out that the Authority has taken appropriate pro-active protection

measures, which included disaster recovery plan, data backup

and availability and media response plan (slide 31). The

respondents also pointed out that all security principles are

followed inasmuch as: (a) there is PKI-2048 encryption from the

time of capture, meaning thereby, as soon as data is given at the

time of enrolment, there is an end to end encryption thereof and it

is transmitted to the Authority in encrypted form. The said

encryption is almost foolproof and it is virtually impossible to

decipher the same; (b) adoption of best-in-class security

standards and practices; and (c) strong audit and traceability as

well as fraud detection. Above all, there is an oversight of

Technology and Architecture Review Board (TARB) and Security

Review Committee. This Board and Committee consists of very

high profiled officers. Therefore, the Act has endeavoured to

provide safeguards.

(d) Insofar as use and protection of data is concerned, having

regard to the principles enshrined in various cases, Indian and

foreign, the matter is examined from the stand point of data

minimisation, purpose limitation, time period for data retention,

data protection and security (qua CIDR, requisite entities,

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 544 of 567

enrolment agencies and Registrars, authentication service

agency, hacking, biometric solution providers, substantive

procedural or judicial safeguards). After discussing the aforesaid

aspect with reference to certain provisions of the Aadhaar Act, we

are of the view that apprehensions of the petitioners stand

assuaged with the striking down or reading down or clarification

of some of the provisions, namely:

(i) Authentication records are not to be kept beyond a period

of six months, as stipulated in
Regulation 27(1)
of the

Authentication Regulations. This provision which permits

records to be archived for a period of five years is held to

be bad in law.

(ii) Metabase relating to transaction, as provided in
Regulation
of the aforesaid Regulations in the present form, is held

to be impermissible, which needs suitable amendment.

(iii) Section 33(1) of the Aadhaar Act is read down by clarifying

that an individual, whose information is sought to be

released, shall be afforded an opportunity of hearing.

(iv) Insofar as
Section 33(2)
of the Act in the present form is

concerned, the same is struck down.

(v) That portion of Section 57 of the Aadhaar Act which

enables body corporate and individual to seek

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 545 of 567

authentication is held to be unconstitutional.

(vi) We have also impressed upon the respondents, to bring

out a robust data protection regime in the form of an

enactment on the basis of Justice B.N. Srikrishna (Retd.)

Committee Report with necessary modifications thereto as

may be deemed appropriate.

(2) Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?

Answer:

(a) After detailed discussion, it is held that all matters pertaining

to an individual do not qualify as being an inherent part of right to

privacy. Only those matters over which there would be a

reasonable expectation of privacy are protected by
Article 21.

This can be discerned from the reading of Paras 297 to 307 of the

judgment.

(b) The Court is also of the opinion that the triple test
laid down

in
order to adjudge the reasonableness of the invasion to privacy

has been made. The Aadhaar scheme is backed by the statute,

i.e. the Aadhaar Act. It also serves legitimate State aim, which

can be discerned from the Introduction to the Act as well as the

Statement of Objects and Reasons which reflect that the aim in

passing the Act was to ensure that social benefit schemes reach

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 546 of 567

the deserving community. The Court noted that the failure to

establish identity of an individual has proved to be a major

hindrance for successful implementation of those programmes as

it was becoming difficult to ensure that subsidies, benefits and

services reach the unintended beneficiaries in the absence of a

credible system to authenticate identity of beneficiaries. The

Statement of Objects and Reasons also discloses that over a

period of time, the use of Aadhaar number has been increased

manifold and, therefore, it is also necessary to take measures

relating to ensuring security of the information provided by the

individuals while enrolling for Aadhaar card.

(c) It may be highlighted that the petitioners are making their

claim on the basis of dignity as a facet of right to privacy. On the

other hand, Section 7 of the Aadhaar Act is aimed at offering

subsidies, benefits or services to the marginalised section of the

society for whom such welfare schemes have been formulated

from time to time. That also becomes an aspect of social justice,

which is the obligation of the State stipulated in Para IV of the

Constitution. The rationale behind
Section 7
lies in ensuring

targeted delivery of services, benefits and subsidies which are

funded from the Consolidated Fund of India. In discharge of its

solemn Constitutional obligation to enliven the Fundamental

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 547 of 567

Rights of life and personal liberty (
Article 21
) to ensure Justice,

Social, Political and Economic and to eliminate inequality (Article

14) with a view to ameliorate the lot of the poor and the Dalits, the

Central Government has launched several welfare schemes.

Some such schemes are PDS, scholarships, mid day meals, LPG

subsidies, etc. These schemes involve 3% percentage of the

GDP and involve a huge amount of public money. Right to

receive these benefits, from the point of view of those who

deserve the same, has now attained the status of fundamental

right based on the same concept of human dignity, which the

petitioners seek to bank upon. The Constitution does not exist for

a few or minority of the people of India, but “We the people”. The

goals set out in the Preamble of the Constitution do not

contemplate statism and do not seek to preserve justice, liberty,

equality an fraternity for those who have the means and

opportunity to ensure the exercise of inalienable rights for

themselves. These goals are predominantly or at least equally

geared to “secure to all its citizens”, especially, to the

downtrodden, poor and exploited, justice, liberty, equality and “to

promote” fraternity assuring dignity. Interestingly, the State has

come forward in recognising the rights of deprived section of the

society to receive such benefits on the premise that it is their

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 548 of 567

fundamental right to claim such benefits. It is acknowledged by

the respondents that there is a paradigm shift in addressing the

problem of security and eradicating extreme poverty and hunger.

The shift is from the welfare approach to a right based approach.

As a consequence, right of everyone to adequate food no more

remains based on Directive Principles of State Policy (Art 47),

though the said principles remain a source of inspiration. This

entitlement has turned into a Constitutional fundamental right.

This Constitutional obligation is reinforced by obligations under

International Convention.

(d) Even the petitioners did not seriously question the purpose

and bona fides of the Legislature enacting the law.

(e) The Court also finds that the Aadhaar Act meets the test of

proportionality as the following components of proportionality

stand satisfied:

(i) A measure restricting a right must have a legitimate goal
(legitimate goal stage).

(ii) It must be a suitable means of furthering this goal
(suitability or rationale connection stage).

(iii) There must not be any less restrictive but equally effective
alternative (necessity stage).

(iv) The measure must not have a disproportionate impact on
the right holder (balancing stage).

(f) In the process, the Court has taken note of various

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 549 of 567

judgments pronounced by this Court pertaining to right to food,

issuance of BPL Cards, LPG connections and LPG cylinders at

minimal cost, old age and other kind of pensions to deserving

persons, scholarships and implementation of MGNREGA

scheme.

(g) The purpose behind these orders was to ensure that the

deserving beneficiaries of the scheme are correctly identified and

are able to receive the benefits under the said scheme, which is

their entitlement. The orders also aimed at ensuring ‘good

governance’ by bringing accountability and transparency in the

distribution system with the pious aim in mind, namely, benefits

actually reached those who are rural, poor and starving.

(h) All this satisfies the necessity stage test, particularly in the

absence of any less restrictive but equally effective alternative.

(i) Insofar as balancing is concerned, the matter is examined

at two levels:

(i) Whether, ‘legitimate state interest’ ensures ‘reasonable

tailoring’? There is a minimal intrusion into the privacy and the

law is narrowly framed to achieve the objective.
Here the Act

is to be tested on the ground that whether it is found on a

balancing test that the social or public interest and the

reasonableness of the restrictions outweigh the particular

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 550 of 567

aspect of privacy, as claimed by the petitioners. This is the

test we have applied in the instant case.

(ii) There needs to be balancing of two competing

fundamental rights, right to privacy on the one hand and right

to food, shelter and employment on the other hand.

Axiomatically both the rights are founded on human dignity. At

the same time, in the given context, two facets are in conflict

with each other. The question here would be, when a person

seeks to get the benefits of welfare schemes to which she is

entitled to as a part of right to live life with dignity, whether her

sacrifice to the right to privacy, is so invasive that it creates

imbalance?

(j) In the process, sanctity of privacy in its functional

relationship with dignity is kept in mind where it says that

legitimate expectation of privacy may vary from intimate zone to

the private zone and from the private to public arena.

Reasonable expectation of privacy is also taken into

consideration. The Court finds that as the information collected at

the time of enrolment as well as authentication is minimal,

balancing at the first level is met. Insofar as second level,

namely, balancing of two competing fundamental rights is

concerned, namely, dignity in the form of autonomy (informational

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 551 of 567

privacy) and dignity in the form of assuring better living standards

of the same individual, the Court has arrived at the conclusion

that balancing at the second level is also met. The detailed

discussion in this behalf amply demonstrates that enrolment in

Aadhaar of the unprivileged and marginalised section of the

society, in order to avail the fruits of welfare schemes of the

Government, actually amounts to empowering these persons. On

the one hand, it gives such individuals their unique identity and,

on the other hand, it also enables such individuals to avail the

fruits of welfare schemes of the Government which are floated as

socio-economic welfare measures to uplift such classes. In that

sense, the scheme ensures dignity to such individuals. This facet

of dignity cannot be lost sight of and needs to be acknowledged.

We are, by no means, accepting that when dignity in the form of

economic welfare is given, the State is entitled to rob that person

of his liberty. That can never be allowed. We are concerned with

the balancing of the two facets of dignity. Here we find that the

inroads into the privacy rights where these individuals are made

to part with their biometric information, is minimal. It is coupled

with the fact that there is no data collection on the movements of

such individuals, when they avail benefits under
Section 7
of the

Act thereby ruling out the possibility of creating their profiles. In

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 552 of 567

fact, this technology becomes a vital tool of ensuring good

governance in a social welfare state. We, therefore, are of the

opinion that the Aadhaar Act meets the test of balancing as well.

(k) Insofar as the argument based on probabilistic system of

Aadhaar, leading to ‘exclusion’ is concerned, the Authority has

claimed that biometric accuracy is 99.76% and the petitioners

have also proceeded on that basis. In this scenario, if the

Aadhaar project is shelved, 99.76% beneficiaries are going to

suffer. Would it not lead to their exclusion? It will amount to

throwing the baby out of hot water along with the water. In the

name of 0.232% failure (which can in any case be remedied)

should be revert to the pre-Aadhaar stage with a system of

leakages, pilferages and corruption in the implementation of

welfare schemes meant for marginalised section of the society,

the full fruits thereof were not reaching to such people?

(l) The entire aim behind launching this programme is the

‘inclusion’ of the deserving persons who need to get such

benefits. When it is serving much larger purpose by reaching

hundreds of millions of deserving persons, it cannot be crucified

on the unproven plea of exclusion of some. It is clarified that the

Court is not trivialising the problem of exclusion if it is there.

However, what we are emphasising is that remedy is to plug the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 553 of 567

loopholes rather than axe a project, aimed for the welfare of large

section of the society. Obviously, in order to address the failures

of authentication, the remedy is to adopt alternate methods for

identifying such persons, after finding the causes of failure in their

cases. We have chosen this path which leads to better

equilibrium and have given necessary directions also in this

behalf, viz:

(i) We have taken on record the statement of the learned

Attorney General that no deserving person would be denied

the benefit of a scheme on the failure of authentication.

(ii) We are also conscious of the situation where the

formation of fingerprints may undergo change for various

reasons. It may happen in the case of a child after she grows

up; it may happen in the case of an individual who gets old; it

may also happen because of damage to the fingers as a result

of accident or some disease etc. or because of suffering of

some kind of disability for whatever reason. Even iris test can

fail due to certain reasons including blindness of a person.

We again emphasise that no person rightfully entitled to the

benefits shall be denied the same on such grounds. It would

be appropriate if a suitable provision be made in the

concerned regulations for establishing an identity by alternate

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 554 of 567

means, in such situations.

(m) As far as subsidies, services and benefits are concerned,

their scope is not to be unduly expanded thereby widening the net

of Aadhaar, where it is not permitted otherwise. In this respect, it

is held as under:

(i) ‘Benefits’ and ‘services’ as mentioned in
Section 7

should be those which have the colour of some kind of

subsidies etc., namely, welfare schemes of the Government

whereby Government is doling out such benefits which are

targeted at a particular deprived class.

(ii) It would cover only those ‘benefits’ etc. the

expenditure thereof has to be drawn from the Consolidated

Fund of India.

(iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot

make the requirement of Aadhaar mandatory as they are

outside the purview of
Section 7
and are not backed by any

law.

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

Answer:

(a) For the enrolment of children under the Aadhaar Act, it

would be essential to have the consent of their parents/guardian.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 555 of 567

(b) On attaining the age of majority, such children who are

enrolled under Aadhaar with the consent of their parents, shall be

given the option to exit from the Aadhaar project if they so choose

in case they do not intend to avail the benefits of the scheme.

(c) Insofar as the school admission of children is concerned,

requirement of Aadhaar would not be compulsory as it is neither a

service nor subsidy. Further, having regard to the fact that a child

between the age of 6 to 14 years has the fundamental right to

education under
Article 21A
of the Constitution, school admission

cannot be treated as ‘benefit’ as well.

(d) Benefits to children between 6 to 14 years under Sarv

Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar

enrolment.

(e) For availing the benefits of other welfare schemes which are

covered by Section 7 of the Aadhaar Act, though enrolment

number can be insisted, it would be subject to the consent of the

parents, as mentioned in (a) above.

(f) We also clarify that no child shall be denied benefit of any of

these schemes if, for some reasons, she is not able to produce

the Aadhaar number and the benefit shall be given by verifying

the identity on the basis of any other documents. This we say

having regard to the statement which was made by Mr. K.K.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 556 of 567

Venugopal, learned Attorney General for India, at the Bar.

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

(i)
Sections 2(c)
and
2(d)
read with
Section 32
(ii)

Section 2(h)
read with
Section 10
of CIDR
(iii)
Section 2(l)
read with
Regulation 23
(iv)

Section 2(v)
(v)

Section 3
(vi)

Section 5
(vii)

Section 6
(viii)

Section 8
(ix)

Section 9
(x)

Sections 11
to
(xi)

Sections 23
and
(xii)
Section 23(2)(g)
read with Chapter VI & VII –
Regulations 27 to 32

(xiii)
Section 29

(xiv)
Section 33

(xv)
Section 47
(xvi)

Section 48
(xvii)

Section 57
(xviii)

Section 59

Answer:

(a)
Section 2(d)
which pertains to authentication records, such

records would not include metadata as mentioned in
Regulation

26(c)
of the Aadhaar (Authentication) Regulations, 2016.

Therefore, this provision in the present form is struck down.

Liberty, however, is given to reframe the regulation, keeping in

view the parameters stated by the Court.

(b) Insofar as
Section 2(b)
is concerned, which defines

‘resident’, the apprehension expressed by the petitioners was that

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 557 of 567

it should not lead to giving Aadhaar card to illegal immigrants.

We direct the respondent to take suitable measures to ensure

that illegal immigrants are not able to take such benefits.

(c) Retention of data beyond the period of six months is

impermissible. Therefore,
Regulation 27
of Aadhaar

(Authentication) Regulations, 2016 which provides archiving a

data for a period of five years is struck down.

(d)
Section 29
in fact imposes a restriction on sharing

information and is, therefore, valid as it protects the interests of

Aadhaar number holders. However, apprehension of the

petitioners is that this provision entitles Government to share the

information ‘for the purposes of as may be specified by

regulations’. The Aadhaar (Sharing of Information) Regulations,

2016, as of now, do not contain any such provision. If a provision

is made in the regulations which impinges upon the privacy rights

of the Aadhaar card holders that can always be challenged.

(e)
Section 33(1)
of the Act prohibits disclosure of information,

including identity information or authentication records, except

when it is by an order of a court not inferior to that of a District

Judge. We have held that this provision is to be read down with

the clarification that an individual, whose information is sought to

be released, shall be afforded an opportunity of hearing. If such

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 558 of 567

an order is passed, in that eventuality, he shall also have right to

challenge such an order passed by approaching the higher court.

During the hearing before the concerned court, the said individual

can always object to the disclosure of information on accepted

grounds in law, including
Article 20(3)
of the Constitution or the

privacy rights etc.

(f) Insofar as
Section 33(2)
is concerned, it is held that

disclosure of information in the interest of national security cannot

be faulted with. However, for determination of such an

eventuality, an officer higher than the rank of a Joint Secretary

should be given such a power. Further, in order to avoid any

possible misuse, a Judicial Officer (preferably a sitting High Court

Judge) should also be associated with. We may point out that

such provisions of application of judicial mind for arriving at the

conclusion that disclosure of information is in the interest of

national security, are prevalent in some jurisdictions. In view

thereof,
Section 33(2)
of the Act in the present form is struck

down with liberty to enact a suitable provision on the lines

suggested above.

(g) Insofar as
Section 47
of the Act which provides for the

cognizance of offence only on a complaint made by the Authority

or any officer or person authorised by it is concerned, it needs a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 559 of 567

suitable amendment to include the provision for filing of such a

complaint by an individual/victim as well whose right is violated.

(h) Insofar as
Section 57
in the present form is concerned, it is

susceptible to misuse inasmuch as: (a) It can be used for

establishing the identity of an individual ‘for any purpose’. We

read down this provision to mean that such a purpose has to be

backed by law. Further, whenever any such “law” is made, it

would be subject to judicial scrutiny. (b) Such purpose is not

limited pursuant to any law alone but can be done pursuant to

‘any contract to this effect’ as well. This is clearly impermissible

as a contractual provision is not backed by a law and, therefore,

first requirement of proportionality test is not met. (c) Apart from

authorising the State, even ‘any body corporate or person’ is

authorised to avail authentication services which can be on the

basis of purported agreement between an individual and such

body corporate or person. Even if we presume that legislature

did not intend so, the impact of the aforesaid features would be to

enable commercial exploitation of an individual biometric and

demographic information by the private entities. Thus, this part of

the provision which enables body corporate and individuals also

to seek authentication, that too on the basis of a contract between

the individual and such body corporate or person, would impinge

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 560 of 567

upon the right to privacy of such individuals. This part of the

section, thus, is declared unconstitutional.

(i) Other provisions of Aadhaar Act are held to be valid,

including
Section 59
of the Act which, according to us, saves the

pre-enactment period of Aadhaar project, i.e. from 2009-2016.

(5) Whether the Aadhaar Act defies the concept of Limited
Government, Good Governance and Constitutional Trust?

Answer:

Aadhaar Act meets 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 Constitution?

Answer:

(a) We do recognise the importance of Rajya Sabha (Upper

House) in a bicameral system of the Parliament. The significance

and relevance of the Upper House has been succinctly

exemplified by this Court in Kuldip Nayar’s case. The Rajya

Sabha, therefore, becomes an important institution signifying

constitutional fedaralism. It is precisely for this reason that to

enact any statute, the Bill has to be passed by both the Houses,

namely, Lok Sabha as well as Rajya Sabha. It is the

constitutional mandate. The only exception to the aforesaid

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 561 of 567

Parliamentary norm is
Article 110
of the Constitution of India.

Having regard to this overall scheme of bicameralism enshrined

in our Constitution, strict interpretation has to be accorded to

Article 110.
Keeping in view these principles, we have

considered the arguments advanced by both the sides.

(b) The petitioners accept that Section 7 of the Aadhaar Act has

the elements of ‘Money Bill’. The attack is on the premise that

some other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57

of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and

57 of the Aadhaar Act) do not fall under any of the clauses of

Article 110
of the Constitution and, therefore, Bill was not limited

to only those subjects mentioned in
Article 110.
Insofar as

Section 7
is concerned, it makes receipt of subsidy, benefit or

service subject to establishing identity by the process of

authentication under Aadhaar or furnish proof of Aadhaar etc. It

is also very clearly declared in this provision that the expenditure

incurred in respect of such a subsidy, benefit or service would be

from the Consolidated Fund of India. It is also accepted by the

petitioners that
Section 7
is the main provision of the Act. In fact,

introduction to the Act as well as Statement of Objects and

Reasons very categorically record that the main purpose of

Aadhaar Act is to ensure that such subsidies, benefits and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 562 of 567

services reach those categories of persons, for whom they are

actually meant.

(c) As all these three kinds of welfare measures are sought to

be extended to the marginalised section of society, a collective

reading thereof would show that the purpose is to expand the

coverage of all kinds of aid, support, grant, advantage, relief

provisions, facility, utility or assistance which may be extended

with the support of the Consolidated Fund of India with the

objective of targeted delivery. It is also clear that various

schemes which can be contemplated by the aforesaid provisions,

relate to vulnerable and weaker section of the society. Whether

the social justice scheme would involve a subsidy or a benefit or

a service is merely a matter of the nature and extent of

assistance and would depend upon the economic capacity of the

State. Even where the state subsidizes in part, whether in cash

or kind, the objective of emancipation of the poor remains the

goal.

(d) The respondents are right in their submission that the

expression subsidy, benefit or service ought to be understood in

the context of targeted delivery to poorer and weaker sections of

society. Its connotation ought not to be determined in the

abstract. For as an abstraction one can visualize a subsidy being

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 563 of 567

extended by Parliament to the King; by Government to the

Corporations or Banks; etc. The nature of subsidy or benefit

would not be the same when extended to the poor and

downtrodden for producing those conditions without which they

cannot live a life with dignity. That is the main function behind

the Aadhaar Act and for this purpose, enrolment for Aadhaar

number is prescribed in Chapter II which covers Sections 3 to

6. Residents are, thus, held entitled to obtain Aadhaar number.

We may record here that such an enrolment is of voluntary

nature. However, it becomes compulsory for those who seeks to

receive any subsidy, benefit or service under the welfare scheme

of the Government expenditure whereof is to be met from the

Consolidated Fund of India. It follows that authentication under

Section 7
would be required as a condition for receipt of a

subsidy, benefit or service only when such a subsidy, benefit or

service is taken care of by Consolidated Fund of India.

Therefore,
Section 7
is the core provision of the Aadhaar Act and

this provision satisfies the conditions of
Article 110
of the

Constitution. Upto this stage, there is no quarrel between the

parties.

(e) On examining of the other provisions pointed out by the

petitioners in an attempt to take it out of the purview of Money

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 564 of 567

Bill, we are of the view that those provisions are incidental in

nature which have been made in the proper working of the Act.

In any case, a part of
Section 57
has already been declared

unconstitutional. We, thus, hold that the Aadhaar Act is validly

passed as a ‘Money Bill’.

(7) Whether
Section 139AA
of the Income Tax Act, 1961 is
violative of right to privacy and is, therefore, unconstitutional?

Answer:

Validity of this provision was upheld in the case of Binoy

Viswam by repelling the contentions based on
Articles 14
and
of the Constitution. The question of privacy which, at that time,

was traced to
Article 21
, was left open. The matter is reexamined

on the touchstone of principles
laid down in
K.S. Puttaswamy.

The matter has also been examined keeping in view that manifest

arbitrariness is also a ground of challenge to the legislative

enactment. Even after judging the matter in the context of

permissible limits for invasion of privacy, namely: (i) the existence

of a law; (ii) a ‘legitimate State interest’; and (iii) such law should

pass the ‘test of proportionality’, we come to the conclusion that

all these tests are satisfied. In fact, there is specific discussion

on these aspects in Binoy Viswam’s case as well.

(8) Whether Rule 9 of the Prevention of Money Laundering
(Maintenance of Records) Rules, 2005 and the notifications

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 565 of 567

issued thereunder which mandates linking of Aadhaar with bank
accounts is unconstitutional?

Answer:

(a) We hold that the provision in the present form does not

meet the test of proportionality and, therefore, violates the right to

privacy of a person which extends to banking details.

(b) This linking is made compulsory not only for opening a new

bank account but even for existing bank accounts with a

stipulation that if the same is not done then the account would be

deactivated, with the result that the holder of the account would

not be entitled to operate the bank account till the time seeding of

the bank account with Aadhaar is done. This amounts to

depriving a person of his property. We find that this move of

mandatory linking of Aadhaar with bank account does not satisfy

the test of proportionality. To recapitulate, the test of

proportionality requires that a limitation of the fundamental rights

must satisfy the following to be proportionate: (i) it is designated

for a proper purpose; (ii) measures are undertaken to effectuate

the limitation are rationally connected to the fulfilment of the

purpose; (iii) there are no alternative less invasive measures; and

(iv) there is a proper relation between the importance of achieving

the aim and the importance of limiting the right.

(c) The Rules are held to be disproportionate for the reasons

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 566 of 567

stated in the main body of this Judgment.

(9) Whether Circular dated March 23, 2017 issued by the
Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?

Answer:

Circular dated March 23, 2017 mandating linking of mobile

number with Aadhaar is held to be illegal and unconstitutional as

it is not backed by any law and is hereby quashed.

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

Answer:

This question is answered in the negative.

448) In view of the aforesaid discussion and observations, the writ

petitions, transferred cases, special leave petition, contempt

petitions and all the pending applications stand disposed of.

.............................................CJI.

(DIPAK MISRA)

.............................................J.
(A.K. SIKRI)

.............................................J.
(A.M. KHANWILKAR)
NEW DELHI;

SEPTEMBER 26, 2018.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 567 of 567

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 494 OF 2012

JUSTICE K S PUTTASWAMY (RETD) & ANR ...PETITIONERS

Versus

UNION OF INDIA & ORS ...RESPONDENTS

WITH

T C (C) NO 151 OF 2013

T C (C) NO 152 OF 2013

W P (C) NO 833 OF 2013

W P (C) NO 829 OF 2013

T P (C) NO 1797 OF 2013

W P (C) NO 932 OF 2013
T P (C) NO 1796 OF 2013

CONMT. PET. (C) NO 144 OF 2014

T P (C) NO 313 OF 2014

T P (C) NO 312 OF 2014

SLP (CRL) NO 2524 OF 2014

W P (C) NO 37 OF 2015

W P (C) NO 220 OF 2015

CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013

T P (C) NO 921 OF 2015

CONMT. PET. (C) NO 470 OF 2015

W P (C) NO 231 OF 2016

CONMT. PET. (C) NO 444 OF 2016

CONMT. PET. (C) NO 608 OF 2016

W P (C) NO 797 OF 2016

CONMT. PET. (C) NO 844 OF 2017
W P (C) NO 342 OF 2017

W P (C) NO 372 OF 2017

W P (C) NO 841 OF 2017

W P (C) NO 1058 OF 2017

W P (C) NO 966 OF 2017

W P (C) NO 1014 OF 2017

W P (C) NO 1002 OF 2017

W P (C) NO 1056 OF 2017

AND

WITH

CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017
JUDGMENT

INDEX

A Introduction: technology, governance and freedom

B The Puttaswamy1 principles

B.I Origins: privacy as a natural right
B.2 Privacy as a constitutionally protected right : liberty and dignity
B.3 Contours of privacy
B.4 Informational privacy
B.5 Restricting the right to privacy
B.6 Legitimate state interests

C Submissions

C.I Petitioners’ submissions
C.2 Respondents’ submissions

D Architecture of Aadhaar: analysis of the legal framework

E Passage of Aadhaar Act as a Money Bill

E.I Judicial Review of the Speaker’s Decision
E.2 Aadhaar Act as a Money Bill

F Biometrics, Privacy and Aadhaar

F.I Increased use of biometric technology
F.2 Consent in the collection of biometric data
F.3 Position before the Aadhaar legislation

1 (2017) 10 SCC 1
F.4 Privacy Concerns in the Aadhaar Act

1. Consent during enrolment and authentication & the right to access
information under the Aadhaar Act

2. Extent of information disclosed during authentication & sharing of core
biometric information

3. Expansive scope of biometric information

4. Other concerns regarding the Aadhaar Act: Misconceptions regarding the
efficacy of biometric information

5. No access to biometric records in database

6. Biometric locking

7. Key takeaways

G Legitimate state aim

G.I Directive Principles
G.2 Development and freedom
G.3 Identity and Identification

H Proportionality

H.I Harmonising conflicting rights
H.2 Proportionality standard in Indian jurisprudence
H.3 Comparative jurisprudence
H.4 Aadhaar: The proportionality analysis
H.5 Dignity and financial exclusion
H.6 Constitutional validity of
Section 139AA
of the Income Tax Act 1961
H.7 Linking of SIM cards and Aadhaar numbers

I Money laundering rules

J Savings in Section 59

K Rule of law and violation of interim orders

L Conclusion
PART A

Dr Dhananjaya Y Chandrachud, J

A Introduction: technology, governance and freedom

1 Technology and biometrics are recent entrants to litigation. Individually,

each presents specific claims: of technology as the great enabler; and of

biometrics as the unique identifier. As recombinant elements, they create as it

were, new genetic material. Combined together, they present unforeseen

challenges for governance in a digital age. Part of the reason for these

challenges is that our law evolved in a radically different age and time. The

law evolved instruments of governance in incremental stages. They were

suited to the social, political and economic context of the time. The forms of

expression which the law codified were developed when paper was

ubiquitous. The limits of paper allowed for a certain freedom: the freedom of

individuality and the liberty of being obscure. Governance with paper could

lapse into governance on paper. Technology has become a universal

language which straddles culture and language. It confronts institutions of

governance with new problems. Many of them have no ready answers.

2 Technology questions the assumptions which underlie our processes of

reasoning. It reshapes the dialogue between citizens and the state. Above all,

it tests the limits of the doctrines which democracies have evolved as a shield

which preserves the sanctity of the individual.
PART A

3 In understanding the interface between governance, technology and

freedom, this case will set the course for the future. Our decision must

address the dialogue between technology and power. The decision will

analyse the extent to which technology has reconfigured the role of the state

and has the potential to reset the lines which mark off no-fly zones: areas

where the sanctity of the individual is inviolable. Our path will define our

commitment to limited government. Technology confronts the future of

freedom itself.

4 Granville Austin, the eminent scholar of the Indian Constitution had

prescient comments on the philosophy of the Indian Constitution. He found it

in three strands:

“The Constitution…may be summarized as having three
strands: protecting and enhancing national unity and integrity;
establishing the institutions and spirit of democracy; and
fostering a social revolution to better the mass of Indians...the
three strands are mutually dependent and inextricably
intertwined. Social revolution could not be sought or gained at
the expense of democracy. Nor could India be truly
democratic unless the social revolution had to establish a just
society. Without national unity, democracy would be
endangered and there would be little progress toward social
and economic reform. And without democracy and reform, the
nation would not hold together. With these three strands, the
framers had spun a seamless web. Undue strain on, or
slackness in any one strand would distort the web and risk its
destruction and, with it, the destruction of the nation.
Maintaining harmony between the strands predictably would
present those who later work the Constitution with great
difficulties…”2

2 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003) at page 6
PART A

These three strands are much like the polycentric web of which Lon Fuller has

spoken.3 A pull on one strand shakes the balance between the others. The

equilibrium between them preserves the equilibrium of the Constitution.

5 This Court has been tasked with adjudicating on the constitutional

validity of the Aadhaar project. The difficulties that Granville Austin had

predicted would arise in harmonising the strands of the “seamless web” are

manifested in the present case. This case speaks to the need to harmonise

the commitment to social welfare while safeguarding the fundamental values

of a liberal constitutional democracy.

6 To usher in a social revolution, India espoused the framework of a

welfare state. The Directive Principles are its allies. The state is mandated to

promote the welfare of its citizens by securing and protecting as effectively as

possible a social order in which there is social, economic and political justice.

Government plays a vital role in the social and economic upliftment of the

nation’s citizenry by espousing equitable distribution of resources and creating

equal opportunities. These are ideals that are meant to guide and govern

State action. The State’s commitment to improve welfare is manifested

through the measures and programmes which it pursues.

3 Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92,
(1978), at pages 353-409
PART A

7 The Constitution of India incorporated a charter of human freedoms in

Part III and a vision of transformative governance in Part IV. Through its rights

jurisprudence, this Court has attempted to safeguard the rights in Part III and

to impart enforceability to at least some of the Part IV rights by reading them

into the former, as intrinsic to a constitutionally protected right to dignity. The

Directive Principles are a reminder of the positive duties which the state has to

its citizens. While social welfare is a foundational value, the Constitution is the

protector of fundamental human rights. In subserving both those ideals, it has

weaved a liberal political order where individual rights and freedoms are at the

heart of a democratic society. The Constitution seeks to fulfil its liberal values

by protecting equality, dignity, privacy, autonomy, expression and other

freedoms.

8 Two recent books have explored the complexities of human identity. In

“The Lies That Bind: Rethinking Identity”4, Kwame Anthony Appiah states that

a liberal constitutional democracy is not a fate but a project. He draws

inspiration from the Roman playwright Terence who observes: “I am human. I

think nothing human alien to me.” Francis Fukuyama, on the other hand has a

distinct nuance about identity. In “Identity: The Demand for Dignity and the

Politics of Enlightenment5, he writes about how nations can facilitate

“integrative national identities” based on liberal democratic values. Reviewing

the books, Anand Giridharadas noted that Fukuyama’s sense of identity is

4 Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright Publishing (2018).
5 Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Enlightenment, Farrar, Straus and
Giroux (2018).
PART A

“large enough to be inclusive but small enough to give people a real sense of

agency over their society.”6. Appiah and Fukuyama present two variants – for

Appiah it has a cosmopolitan and global nature while it is more integrated with

a nation state, for Fukuyama, though firmly rooted in a liberal constitutional

order.

9 India has participated in and benefited from the reconfiguring of

technology by the global community. We live in an age of information and are

witness to a technological revolution that pervades almost every aspect of our

lives. Redundancies and obsolescence are as ubiquitous as technology itself.

Technology is a great enabler. Technology can be harnessed by the State in

furthering access to justice and fostering good governance.

10 In an age symbolised by an information revolution, society is witnessing

a shift to a knowledge economy7. In a knowledge economy, growth is

dependent on the ‘quantity, quality, and accessibility’8 of information. The

quest for digital India must nonetheless be cognisant of the digital divide.

Access confronts serious impediments. Large swathes of the population have

little or no access to the internet or to the resources required for access to

information. With the growth of the knowledge economy, our constitutional

jurisprudence has expanded privacy rights. A digital nation must not submerge

6 Anand Giridharadas, ‘What is Identity?’, The New York Times, 27 August, 2018.
7 Peter F Drucker, The Age of Discontinuity: Guidelines to Our Changing Society, Harper & Row (1969).
Drucker’s book popularized the term ‘Knowledge Economy’.
8 ‘What is Knowledge Economy?’, IGI Global: Disseminator of Knowledge, available at:

https://www.igi-global.com/dictionary/indigenous-knowledges-and-knowledge-codification-in-the-knowledge-
economy/16327
PART A

the identities of a digitised citizen. While data is the new oil, it still eludes the

life of the average citizen. If access to welfare entitlements is tagged to unique

data sets, skewed access to informational resources should not lead to

perpetuating the pre-existing inequalities of access to public resources. An

identification project that involves the collection of the biometric and

demographic information of 1.3 billion people9, creating the largest biometric

identity project in the world, must be scrutinized carefully to assess its

compliance with human rights.

11 Empowered by the technology that accompanied the advent of the

information age, the Aadhaar project was envisioned and born. The project is

a centralised nation-wide identification system based on biometric technology.

It aims to be a game changer in the delivery of welfare benefits through the

use of technology. The project seeks to facilitate de-duplication, prevent

revenue leakages and ensure a more cost and time efficient procedure for

identification. Conceptualised on the use of biometrics and authentication, the

Aadhaar identity card was originally introduced as a matter of voluntary

choice. It was made a requirement for state subsidies and benefits for which,

expenses are incurred from the Consolidated Fund of India. It was later

expanded to become necessary to avail of a host of other services. The

project is multifaceted and expansive. Perhaps no similar national identity

program exists in the world. The Aadhaar project has multifarious aspects, all

9 Krishnadas Rajagopal, ‘Aadhaar in numbers: key figures from UIDAI CEO’s presentation to the Supreme
Court’, The Hindu, (March 22, 2018). Aadhaar enrollment as of March 2018 stood at over 1 billion.
PART A

of which have been the subject of a detailed challenge by the Petitioners.

They have been met with an equally strong defence from the government,

which has argued that the programme is indispensable to curb corruption,

fraud and black money.

12 The Aadhaar project raises two crucial questions: First, are there

competing interests between human rights and ‘welfare furthering technology’

in democratic societies? Can technologies which are held out to bring

opportunities for growth, also violate fundamental human freedoms? Second,

if the answer to the first is in the affirmative, how should the balance be struck

between these competing interests?

13 Efficiency is a significant facet of institutional governance. But

efficiencies can compromise dignity. When efficiency becomes a universal

mantra to steam-roll fundamental freedoms, there is a danger of a society

crossing the line which divides democracy from authoritarian cultures. At the

heart of the grounds on which the Aadhaar project has been challenged, lies

the issue of power. Our Constitution is a transformative document in many

ways. One of them is in defining and limiting the State’s powers, while

expanding the ambit of individual rights and liberties. It protects citizens from

totalitarian excesses and establishes order between the organs of the State,

between the State and citizens and between citizens. Most importantly, it

reaffirms the position of the individual as the core defining element of the
PART A

polity. That is the justification to restrain power by empowering all citizens to

be authors of their destiny. According to the Petitioners, the technological

potential as well as the actual implementation of the Aadhaar project alters the

balance between the state and its citizens in this relational sphere and has the

potential to permanently redistribute power within the constitutional

framework.

14 As far as citizen-state relations are concerned, the Constitution was

framed to balance the rights of the individual against legitimate State interests.

Being transformative, it has to be interpreted to meet the needs of a changing

society. As the interpreter of the Constitution, it is the duty of this Court to be

vigilant against State action that threatens to upset the fine balance between

the power of the state and rights of citizens and to safeguard the liberties that

inhere in our citizens.
The present case
involves issues that travel to the heart of our

constitutional structure as a democracy governed by the rule of law. Among

them is the scope of this Court’s power of judicial review. The Aadhaar

legislation was passed as a money bill in the Lok Sabha. Whether it was

permissible, in constitutional terms, to by-pass the Rajya Sabha, is the

question. The role of the Rajya Sabha in a bicameral legislative structure, the

limits of executive power when it affects fundamental rights and the duty of the
PART A

state to abide by interim orders of this Court are matters which will fall for

analysis in the case.

16 The case is hence as much about the rule of law and institutional

governance. Accountability is a key facet of the rule of law. Professor

Upendra Baxi has remarked:

“The problem of human rights, in situations of mass poverty,
is thus one of redistribution, access and needs. In other
words, it is a problem of “development”, a process of planned
social change through continuing exercise of public power. As
there is no assurance that public power will always, or even in
most cases, be exercised in favour of the deprived and
dispossessed, an important conception of development itself
is accountability, by the wielders of public power, to the
people affected by it and people at large. Accountability is the
medium through which we can strike and maintain a balance
between the governors and the governed.”10

These are some of the unique challenges of this case. They must be analysed

in the context of our constitutional framework. The all-encompassing nature of

the Aadhaar project, its magnitude and the resultant impact on citizens’

fundamental rights, make it imperative to closely scrutinize the structure and

effect of the project. For this will determine the future of freedom.

10 Upendra Baxi, The Right To Be Human: Some Heresies, India International Centre Quarterly, Vol. 13, (1986).
PART B

B The Puttaswamy11 principles

17 A unanimous verdict by a nine judge Bench declared privacy to be

constitutionally protected, as a facet of liberty, dignity and individual

autonomy. In a voluminous judgment, the Court traced the origins of privacy

and its content. The decision lays down the test of proportionality to evaluate

the constitutional validity of restrictions on the right to privacy.

18 The protection of privacy emerges both from its status as a natural right

inhering in every individual as well as its position as “a constitutionally

protected right”. As a constitutional protection, privacy traces itself to the

guarantee of life and personal liberty in
Article 21
of the Constitution as well as

to other facets of freedom and dignity recognized and guaranteed by the

fundamental rights contained in Part III.

B.I Origins: privacy as a natural right

19 Puttaswamy holds that the right to privacy inheres in every individual

as a natural right. It is inalienable and attaches to every individual as a pre-

condition for being able to exercise their freedom. The judgment of four judges

(with which Justice Sanjay Kishan Kaul concurred) held :

“42. Privacy is a concomitant of the right of the individual to
exercise control over his or her personality. It finds an origin

11 Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1
PART B

in the notion that there are certain rights which are
natural to or inherent in a human being. Natural rights are
inalienable because they are inseparable from the human
personality.”12 (Emphasis supplied)

“319. Life and personal liberty are not creations of the
Constitution. These rights are recognised by the
Constitution as inhering in each individual as an intrinsic
and inseparable part of the human element which dwells
within.”13 (Emphasis supplied)

In his concurring opinion, S A Bobde, J. opined:

“392…Privacy, with which we are here concerned, eminently
qualifies as an inalienable natural right, intimately
connected to two values whose protection is a matter of
universal moral agreement: the innate dignity and autonomy
of man.”14 (Emphasis supplied)

Similarly, in his concurring opinion, Nariman, J. opined:

“532…It was, therefore, argued before us that given the
international conventions referred to hereinabove and the fact
that this right inheres in every individual by virtue of his being
a human being, such right is not conferred by the Constitution
but is only recognized and given the status of being
fundamental. There is no doubt that the petitioners are
correct in this submission.”15
(Emphasis supplied)

In his concurring opinion, Abhay Manohar Sapre, J. opined:

“557. In my considered opinion, “right to privacy of any
individual” is essentially a natural right, which inheres in
every human being by birth…It is indeed inseparable and
inalienable from human being.”16
(Emphasis supplied)

12 Ibid, at page 365
13 Ibid, at page 508
14 Ibid, at pages 536-537
15 Ibid, at page 605
16 Ibid, at page 614
PART B

The judgment authoritatively settles the position. While privacy is recognized

and protected by the Constitution as an intrinsic and inseparable part of life,

liberty and dignity, it inheres in every individual as a natural right.

B.2 Privacy as a constitutionally protected right : liberty and dignity

20 The judgment placed the individual at the centre of the constitutional

rights regime. The individual lies at the core of constitutional focus. The ideals

of justice, liberty, equality and fraternity animate the vision of securing a

dignified existence to the individual. The Court held that privacy attaches to

the person and not the place where it is associated. Holding that privacy

protects the autonomy of the individual and the right to make choices, the

judgment of four judges held:

“108….The individual is the focal point of the Constitution
because it is in the realisation of individual rights that the
collective well being of the community is determined.
Human dignity is an integral part of the Constitution.17

“266. Our Constitution places the individual at the
forefront of its focus, guaranteeing civil and political
rights in Part III and embodying an aspiration for
achieving socio-economic rights in Part IV.”
(Emphasis supplied)

It was held that privacy rests in every individual “irrespective of social class or

economic status” and that every person is entitled to the intimacy and

autonomy that privacy protects:

17 Ibid, at page 403
PART B

“271...It is privacy as an intrinsic and core feature of life and
personal liberty which enables an individual to stand up
against a programme of forced sterilization. Then again, it is
privacy which is a powerful guarantee if the State were to
introduce compulsory drug trials of non-consenting men or
women. The sanctity of marriage, the liberty of
procreation, the choice of a family life and the dignity of
being are matters which concern every individual
irrespective of social strata or economic well being. The
pursuit of happiness is founded upon autonomy and
dignity. Both are essential attributes of privacy which
makes no distinction between the birth marks of
individuals.”18 (Emphasis supplied)

21 Recognizing that civil-political rights are not subservient to socio-

economic rights, the Court held that “conditions necessary for realizing or

fulfilling socio-economic rights do not postulate the subversion of political

freedom.”

“266...The refrain that the poor need no civil and political
rights and are concerned only with economic well-being has
been utilised through history to wreak the most egregious
violations of human rights. Above all, it must be realised that it
is the right to question, the right to scrutinize and the right to
dissent which enables an informed citizenry to scrutinize the
actions of government. Those who are governed are entitled
to question those who govern, about the discharge of their
constitutional duties including in the provision of socio-
economic welfare benefits. The power to scrutinize and to
reason enables the citizens of a democratic polity to make
informed decisions on basic issues which govern their
rights.19

267... Conditions of freedom and a vibrant assertion of civil
and political rights promote a constant review of the justness
of socio-economic programmes and of their effectiveness in
addressing deprivation and want. Scrutiny of public affairs is
founded upon the existence of freedom. Hence civil and
political rights and socio-economic rights are complementary
and not mutually exclusive.”20

18 Ibid, at page 484
19 Ibid, at pages 481-482
20 Ibid, at page 482
PART B

Significantly, the Court rejected the submission that there is a conflict between

civil-political rights and socio-economic rights. Both in the view of the Court

are an integral part of the constitutional vision of justice.

22 Privacy, it was held, reflects the right of the individual to exercise control

over his or her personality. This makes privacy the heart of human dignity and

liberty. Liberty and dignity are complementary constitutional entities. Privacy

was held to be integral to liberty. Privacy facilitates the realization of

constitutional freedoms. This Court held thus:

“119. To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which
constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is
dignity that it permeates the core of the rights guaranteed to
the individual by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. Privacy
with its attendant values assures dignity to the individual and
it is only when life can be enjoyed with dignity can liberty be
of true substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and liberty is
intended to achieve.”21

127...The right to privacy is an element of human dignity. The
sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to
make essential choices which affect the course of life. In
doing so privacy recognises that living a life of dignity is
essential for a human being to fulfil the liberties and freedoms
which are the cornerstone of the Constitution.”22

21 Ibid, at pages 406-407
22 Ibid, at page 413
PART B

23 The assurance of human dignity enhances the quality of life. The

“functional relationship” between privacy and dignity secures the “inner

recesses of the human personality from unwanted intrusion”. Privacy by

recognizing the autonomy of an individual, protects the right to make choices

essential to a dignified life. It thus enables the realization of constitutional

liberties and freedoms. It was held in the judgment:

“322. Privacy is the constitutional core of human dignity.
Privacy has both a normative and descriptive function. At a
normative level privacy sub-serves those eternal values upon
which the guarantees of life, liberty and freedom are founded.
At a descriptive level, privacy postulates a bundle of
entitlements and interests which lie at the foundation of
ordered liberty.23

298…Dignity cannot exist without privacy. Both reside within
the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of
choice and self-determination.”24

24 Privacy is founded on the autonomy of the individual. The ability to

make choices is at the core of the human personality. Its inviolable nature is

manifested in the ability to make intimate decisions about oneself with a

legitimate expectation of privacy. Privacy guarantees constitutional protection

to all aspects of personhood. Privacy was held to be an “essential condition”

for the exercise of most freedoms. As such, given that privacy and liberty are

intertwined, privacy is necessary for the exercise of liberty. Bobde J, in his

separate opinion held that:

23 Ibid, at page 508
24 Ibid, at page 499
PART B

“409...Liberty and privacy are integrally connected in a way
that privacy is often the basic condition necessary for
exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being
performed at all and in many cases with dignity unless an
individual is left alone or is otherwise empowered to ensure
his or her privacy.25

411... Both dignity and privacy are intimately intertwined and
are natural conditions for the birth and death of individuals,
and for many significant events in life between these events.
Necessarily, then, the right of privacy is an integral part of
both ‘life’ and ‘personal liberty’ under
Article 21
, and is
intended to enable the rights bearer to develop her potential
to the fullest extent made possible only in consonance with
the constitutional values expressed in the Preamble as well
as across Part III.”26

25 Apart from being a natural law right, the right to privacy was held to be a

constitutionally protected right flowing from
Article 21.
Privacy is an

indispensable element of the right to life and personal liberty under
Article 21

and as a constitutional value which is embodied in the fundamental freedoms

embedded in Part III of the Constitution. Tracing out the course of precedent

in Indian jurisprudence over the last four decades, the view of four judges

holds:

“103. The right to privacy has been traced in the decisions
which have been rendered over more than four decades to
the guarantee of life and personal liberty in
Article 21
and the
freedoms set out in Article 19.”27

“320. Privacy is a constitutionally protected right which
emerges primarily from the guarantee of life and personal
liberty in
Article 21
of the Constitution…”28

25 Ibid, at page 543
26 Ibid, at page 544
27 Ibid, at page 401
28 Ibid, at page 508
PART B

In a similar vein, Chelameswar J. while concurring with the view of four judges

held:

“375. The right to privacy is certainly one of the core
freedoms which is to be defended. It is part of liberty within
the meaning of that expression in Article 21.”29

26 Being indispensable to dignity and liberty, and essential to the exercise

of freedoms aimed at the self-realization of every individual, privacy was held

to be a common theme running across the freedoms and rights guaranteed

not just by
Article 21
, but all of Part III of the Constitution. Bobde J. in his

separate opinion held that:

“406. It is not possible to truncate or isolate the basic freedom
to do an activity in seclusion from the freedom to do the
activity itself. The right to claim a basic condition like privacy
in which guaranteed fundamental rights can be exercised
must itself be regarded as a fundamental right. Privacy, thus,
constitutes the basic, irreducible condition necessary for
the exercise of ‘personal liberty’ and freedoms
guaranteed by the Constitution. It is the inarticulate
major premise in Part III of the Constitution.30

415. Privacy is the necessary condition precedent to the
enjoyment of any of the guarantees in Part III. As a result,
when it is claimed by rights bearers before constitutional
courts, a right to privacy may be situated not only in

Article 21
, but also simultaneously in any of the other
guarantees in Part III. In the current state of things,
Articles
19(1)
, 20(3)
, 25
, 28
and
are all rights helped up and made
meaningful by the exercise of privacy.”
(Emphasis supplied)

29 Ibid, at page 531
30 Ibid, at pages 541-542
PART B

B.3 Contours of privacy

27 Privacy has been held to have distinct connotations including (i) spatial

control; (ii) decisional autonomy; and (iii) informational control. The judgment

of four judges held that:

“248. Spatial control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal choices
such as those governing reproduction as well as choices
expressed in public such as faith or modes of dress.
Informational control empowers the individual to use privacy
as a shield to retain personal control over information
pertaining to the person.”

Similarly, Nariman J. in his separate opinion held:

“521. In the Indian context, a fundamental right to privacy
would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is
some invasion by the State of a person’s rights relatable to
his physical body, such as the right to move freely;
• Informational privacy which does not deal with a
person’s body but deals with a person’s mind, and therefore
recognizes that an individual may have control over the
dissemination of material that is personal to him.
Unauthorised use of such information may, therefore lead to
infringement of this right; and
• The privacy of choice, which protects an individual’s
autonomy over fundamental personal choices.”31

28 However, it was held that this is not an exhaustive formulation of

entitlements. In recording its conclusions, the opinion of four judges held:

“324. This Court has not embarked upon an exhaustive
enumeration or a catalogue of entitlements or interests
comprised in the right to privacy. The Constitution must
evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed by
the rule of law. The meaning of the Constitution cannot be

31 Ibid, at page 598
PART B

frozen on the perspectives present when it was adopted.

Technological change has given rise to concerns which were
not present seven decades ago and the rapid growth of
technology may render obsolescent many notions of the
present. Hence the interpretation of the Constitution must
be resilient and flexible to allow future generations to
adapt its content bearing in mind its basic or essential
features.”32 (Emphasis supplied)

Additionally, Bobde J., in his separate opinion held that the right to privacy

may also inhere in other parts of the Constitution beyond those specified in

the judgment:

“415. Therefore, privacy is the necessary condition precedent
to the enjoyment of any of the guarantees in Part III. As a
result, when it is claimed by rights bearers before
constitutional courts, a right to privacy may be situated not
only in
Article 21
, but also simultaneously in any of the other
guarantees in Part III. In the current state of things,
Articles
19(1)
, 20(3)
, 25
, 28
and
are all rights helped up and made
meaningful by the exercise of privacy. This is not an
exhaustive list. Future developments in technology and
social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that
are not at present evident to us.”33 (Emphasis supplied)

B.4 Informational privacy

29 Puttaswamy held that informational privacy is an essential aspect of

the fundamental right to privacy. It protects an individual’s free, personal

conception of the ‘self.’ Justice Nariman held that informational privacy “deals

with a person’s mind, and therefore recognizes that an individual may have

control over the dissemination of material that is personal to him”. Any

unauthorised use of such information may therefore lead to infringement of the

32 Ibid, at page 509
33 Ibid, at page 545
PART B

right to privacy. In his concurring judgment, Justice Kaul held that

informational privacy provides the right to an individual “to disseminate certain

personal information for limited purposes alone”. Kaul J. in his separate

opinion held:

“620…The boundaries that people establish from others in
society are not only physical but also informational. There
are different kinds of boundaries in respect to different relations.
Privacy assists in preventing awkward social situations and
reducing social frictions. Most of the information about
individuals can fall under the phrase “none of your business”. …
An individual has the right to control one’s life while submitting
personal data for various facilities and services. It is but
essential that the individual knows as to what the data is
being used for with the ability to correct and amend it. The
hallmark of freedom in a democracy is having the
autonomy and control over our lives which becomes
impossible, if important decisions are made in secret
without our awareness or participation.”34 (Emphasis
supplied)

30 A reasonable expectation of privacy requires that data collection does

not violate the autonomy of an individual. The judgment of four judges noted

the centrality of consent in a data protection regime. This was also highlighted

in the separate concurring opinion of Justice Kaul:

“625. Every individual should have a right to be able to
exercise control over his/her own life and image as portrayed
to the world and to control commercial use of his/her identity.
This also means that an individual may be permitted to
prevent others from using his image, name and other aspects
of his/her personal life and identity for commercial purposes
without his/her consent.”35

34 Ibid, at page 627
35 Ibid, at page 629
PART B

Consent, transparency and control over information are crucial to

informational privacy. In this structure, Court has principally focused on the

“individual” as central to our jurisprudence.

B.5 Restricting the right to privacy

31 There is an inherent importance of giving a constitutional status to

privacy. Justice Nariman dealt with this:

“490...The recognition of such right in the fundamental rights
chapter of the Constitution is only a recognition that such right
exists notwithstanding the shifting sands of majority
governments. Statutes may protect fundamental rights; they
may also infringe them. In case any existing statute or any
statute to be made in the future is an infringement of the
inalienable right to privacy, this Court would then be required
to test such statute against such fundamental right and if it is
found that there is an infringement of such right, without any
countervailing societal or public interest, it would be the duty
of this Court to declare such legislation to be void as
offending the fundamental right to privacy.”36

A constitutional right may embody positive and negative ‘aspects’. They

signify mandates. At an affirmative level, they emphasise the content and

diversity of our liberties. As a ‘negative’, they impose restraints on the state

and limit the power of the state to intrude upon the area of personal freedom.

‘Negative’ in this sense reflects a restraint: the fundamental rights are a

restraining influence on the authority of power. In addition to keeping itself

within the bounds of its authority, the state may have a positive obligation to

perform. Rights such as informational privacy and data protection mandate

36 Ibid, at pages 580-581
PART B

that the state must bring into being a viable legal regime which recognizes,

respects, protects and enforces informational privacy. Informational privacy

requires the state to protect it by adopting positive steps to safeguard its

cluster of entitlements. The right to informational privacy is not only vertical

(asserted and protected against state actors) but horizontal as well.

Informational privacy requires legal protection because the individual cannot

be left to an unregulated market place. Access to and exploitation of individual

personal data – whether by state or non-state entities – must be governed by

a legal regime built around the principles of consent, transparency and

individual control over data at all times.

32 Privacy, being an intrinsic component of the right to life and personal

liberty, it was held that the limitations which operate on those rights, under

Article 21
, would operate on the right to privacy. Any restriction on the right to

privacy would therefore be subjected to strict constitutional scrutiny. The

constitutional requirements for testing the validity of any encroachment on

privacy were dealt with in the judgment as follows:

“325… In the context of
Article 21
an invasion of privacy must
be justified on the basis of a law which stipulates a procedure
which is fair, just and reasonable. The law must also be valid
with reference to the encroachment on life and personal
liberty under
Article 21.
An invasion of life or personal liberty
must meet the three-fold requirement of (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.”37

37 Ibid, at page 509
PART B

These three-fold requirements emerge from the procedural and content-based

mandate of
Article 21.
The first requirement is the enactment of a valid law,

which justifies an encroachment on privacy. The second requirement of a

legitimate State aim ensures that the law enacted to restrict privacy is

constitutionally reasonable and does not suffer from manifest arbitrariness.

The third requirement of proportionality ensures that the nature and quality of

the encroachment on the right to privacy is not disproportionate to the purpose

of the law. Proportionality requires the State to justify that the means which

are adopted by the legislature would encroach upon the right to privacy only to

the minimum degree necessary to achieve its legitimate interest.

Justice Nariman held thus:

“495…Statutory provisions that deal with aspects of privacy
would continue to be tested on the ground that they would
violate the fundamental right to privacy, and would not be
struck down, if it is found on a balancing test that the social or
public interest and the reasonableness of the restrictions
would outweigh the particular aspect of privacy claimed. If this
is so, then statutes which would enable the State to
contractually obtain information about persons would pass
muster in given circumstances, provided they safeguard the
individual right to privacy as well… in pursuance of a statutory
requirement, if certain details need to be given for the
concerned statutory purpose, then such details would
certainly affect the right to privacy, but would on a balance,
pass muster as the State action concerned has sufficient
inbuilt safeguards to protect this right – viz. the fact that such
information cannot be disseminated to anyone else, save on
compelling grounds of public interest.”38

33 While five judges of the Court adopted the “proportionality” standard to

test a law infringing privacy, Justice Chelameswar discussed the need to

38 Ibid, at page 583
PART B

apply of a “compelling state interest” standard, describing it as the “highest

standard of scrutiny that a court can adopt”. Describing
Article 21
as the

“bedrock” of privacy, the learned Judge held:

“379…If the spirit of liberty permeates every claim of privacy,
it is difficult if not impossible to imagine that any standard of
limitation, other than the one under
Article 21
applies.39

380. The just, fair and reasonable standard of review under

Article 21
needs no elaboration. It has also most commonly
been used in cases dealing with a privacy claim hitherto.

Gobind resorted to the compelling state interest standard in
addition to the
Article 21
reasonableness enquiry. From the
United States where the terminology of ‘compelling state
interest’ originated, a strict standard of scrutiny comprises two
things- a ‘compelling state interest’ and a requirement of
‘narrow tailoring’ (narrow tailoring means that the law must be
narrowly framed to achieve the objective). As a term,
compelling state interest does not have definite contours in
the US. Hence, it is critical that this standard be adopted with
some clarity as to when and in what types of privacy claims it
is to be used. Only in privacy claims which deserve the
strictest scrutiny is the standard of compelling State
interest to be used. As for others, the just, fair and
reasonable standard under
Article 21
will apply. When
the compelling State interest standard is to be employed
must depend upon the context of concrete cases.”40
(Emphasis supplied)

Justice Chelameswar’s view accepts the ‘fair, just and reasonable’ standard in

the generality of cases, carving an exception in cases of a certain category

where a heightened scrutiny must apply. Those categories of exception are

not spelt out. They would, as the judge opined, be evolved on a case by case

basis.

39 Ibid, at page 532
40 Ibid, at pages 532-533
PART B

34 The Bench of nine judges had held that the contours of privacy exist

across the spectrum of constitutionally protected freedoms. Privacy was held

to be a necessary condition precedent to the enjoyment of the guarantees in

Part III. This has enhanced the scope of the protection guaranteed to privacy.

Consequently, privacy infringements will generally have to satisfy the other

tests applicable apart from those under
Article 21.
In his concurring opinion,

Justice S A Bobde held:

“427. Once it is established that privacy imbues every
constitutional freedom with its efficacy and that it can be
located in each of them, it must follow that interference
with it by the state must be tested against whichever one
or more Part III guarantees whose enjoyment is curtailed.
As a result, privacy violations will usually have to answer to
tests in addition to the one applicable to
Article 21
, Such a
view would be wholly consistent with R. C. Cooper v. Union of
India.”41 (Emphasis supplied)

Any attempt by the State to restrict privacy must therefore meet the

constitutional requirements prescribed for each provision of Part III, which the

restriction infringes. In his concurring opinion, Justice Nariman held thus:

“488... Every State intrusion into privacy interests which deals
with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test
prescribed under the fundamental right that it infringes
depending upon where the privacy interest claimed is
founded.”42 (Emphasis supplied)

Justice Nariman further held:

“526…when it comes to restrictions on this right, the drill
of various Articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an

41 Ibid, at page 549
42 Ibid, at page 580
PART B

individual is to make, State action can be restrained under

Article 21
read with
Article 14
if it is arbitrary and
unreasonable; and under
Article 21
read with
Article 19(1)(a)

only if it relates to the subjects mentioned in
Article 19(2)
and
the tests laid down by this Court for such legislation or
subordinate legislation to pass muster under the said Article.

Each of the tests evolved by this Court, qua legislation or
executive action, under
Article 21
read with
Article 14;
or

Article 21
read with
Article 19(1) (a)
in the aforesaid examples
must be met in order that State action must pass muster.”43
(Emphasis supplied)

The constitutional guarantee on protection of privacy was placed on a sure

foundation. Since emanations of privacy are traceable to various rights

guaranteed by Part III, a law or executive action which encroaches on privacy

must meet the requirements of the constitutionally permissible restriction in

relation to each of the fundamental rights where the claim is founded.

B.6 Legitimate state interests

35 Recognizing that the right to privacy is not absolute, the judgment

recognizes that legitimate state interests may be a valid ground for the

curtailment of the right subject to the tests laid down for the protection of

rights. Justice Nariman held:

“526...This right is subject to reasonable regulations made by
the State to protect legitimate State interests or public
interest. However, when it comes to restrictions on this right,
the drill of various Articles to which the right relates must be
scrupulously followed.”44

43 Ibid, at page 601
44 Ibid, at page 601
PART B

Recognizing that a legitimate state aim is a pre-requisite for any restriction on

the right, the judgment of four judges held:

“310…the requirement of a need, in terms of a legitimate
state aim, ensures that the nature and content of the law
which imposes the restriction falls within the zone of
reasonableness mandated by
Article 14
, which is a guarantee
against arbitrary state action. The pursuit of a legitimate state
aim ensures that the law does not suffer from manifest
arbitrariness.”

36 The judgment sets out illustrations of legitimate State interests. The

provisos to various fundamental rights were held to be an obvious restriction

on the right to privacy. It was held that the State does have a legitimate

interest in collection and storage of private information when it is related to

security of the nation. Apart from the concerns of national security, an

important State interest, it was held, lies in ensuring that scarce public

resources reach the beneficiaries for whom they are intended. It was held

thus:

“311...Allocation of resources for human development is
coupled with a legitimate concern that the utilisation of
resources should not be siphoned away for extraneous
purposes… Data mining with the object of ensuring that
resources are properly deployed to legitimate beneficiaries is
a valid ground for the state to insist on the collection of
authentic data.”45

Prevention and investigation of crime, protection of the revenue and public

health were demarcated as being part of other legitimate aims of the State.

The judgment places an obligation on the State to ensure that while its

legitimate interests are duly preserved the data which the State collects is

45 Ibid, at page 505
PART B

used only for the legitimate purposes of the State and is “not to be utilised

unauthorizedly for extraneous purposes.”

37 However, reiterating that every facet of privacy is to be protected, the

judgment held that there should be a careful balance between individual

interests and legitimate concerns of the state. Justice Nariman, in his separate

opinion held:

“488. Every State intrusion into privacy interests which deals
with the physical body or the dissemination of information
personal to an individual or personal choices relating to the
individual would be subjected to the balancing test prescribed
under the fundamental right that it infringes depending upon
where the privacy interest claimed is founded.”46

38 The judgment in Puttaswamy recognizes the right to privacy as a

constitutional guarantee protected as intrinsic to the freedoms guaranteed by

Part III of the Constitution. Privacy is integral to the realization of human

dignity and liberty. A society which protects privacy, values the worth of

individual self-realization. For it is in the abyss of solitude that the innermost

recesses of the mind find solace to explore within and beyond.

46 Ibid, at page 580
PART C

C Submissions

C.I Petitioners’ submissions

The petitioners challenge the constitutional validity of:

a. The Aadhaar programme that operated between 28.01.2009 till the coming

into force of the
Aadhaar Act, 2016
on 12.07.2016;

b.
The Aadhaar Act, 2016
(and alternatively certain provisions of the Act);

c. Regulations framed under the
Aadhaar Act, 2016
;

d. Elements of the Aadhaar programme that continue to operate without the

cover of the Act;

e. Subordinate legislation including the Money Laundering (Amendment)

Rules, 2017;

f. All notifications issued under Section 7 of the Aadhaar Act in so far as they

make Aadhaar mandatory for availing of certain benefits, services and

subsidies; and

g. Actions which made Aadhaar mandatory even where the activity is not

covered by
Section 7
of the Act.

Mr Shyam Divan, learned Senior Counsel submitted that the Aadhaar project

and Act are ultra vires on the following grounds:

i The project and the Act violate the fundamental right to privacy;
PART C

ii The architecture of the Aadhaar project enables pervasive surveillance by

the State;

iii The fundamental constitutional feature of a ‘limited government’ - which is

the sovereignty of the people and limited government authority- is changed

completely post Aadhaar and reverses the relationship between the citizen

and the State;

iv Due to the unreliability of biometric technology, there are authentication

failures which lead to the exclusion of individuals from welfare schemes;

v A citizen or resident in a democratic society has a choice to identify herself

through different modes in the course of her interactions generally in

society, as well as in her interactions with the State. Mandating

identification by only one mode is highly intrusive, excessive and

disproportionate and violates
Articles 14
, 19
and
21;
and

vi The procedure adopted by the State before and after the enactment of the

law is violative of
Articles 14
and
because:

a. There is no informed consent at the time of enrolment;

b. UIDAI does not have control over the enrolling agencies and

requesting entities that collect sensitive personal information which

facilitates capture, storage and misuse of information; and
PART C

c. The data collected and uploaded into the CIDR is not verified by any

government official designated by UIDAI.

Mr Kapil Sibal, learned Senior Counsel submits that the provisions of the

Aadhaar Act are unconstitutional for the following reasons:

i The aggregation and concentration of sensitive personal information under

the Aadhaar Act is impermissible because it is capable of being used to

affect every aspect of an individual’s personal, professional, religious and

social life. It is therefore violative of the individual freedoms guaranteed

under
Articles 19(1)(a)
to 19(1)(g), 21 and 25 of the Constitution;

ii Such aggregation of information is also an infringement of informational

privacy, which has been recognised in Puttaswamy;

iii Making Aadhaar mandatory unreasonably deprives citizens of basic rights

and entitlements and infringes
Article 21
of the Constitution;

iv Use of Aadhaar as an exclusive identity for availing of subsidies, benefits

and services is disproportionate and violates
Article 14
for being arbitrary

and discriminatory against persons otherwise entitled to such benefits;

v Collection and storage of data with the government under the Aadhaar Act

is violative of the right to protection from self-incrimination, and the right to
PART C

privacy and personal dignity and bodily Integrity envisaged under
Article

20(3)
and
Article 21
of the Constitution;

vi To prescribe that Aadhaar is the only identity that enables a person to

receive entitlements is contrary to the right of an individual under the

Constitution to identify the person through other prescribed documentation

such as electoral rolls or passports;

vii Section 7 of the Aadhaar Act is applicable only to such subsidies, benefits

and services, for which the entire expenditure is directly incurred from the

Consolidated Fund of India or from which the entire receipts directly form

part of the Consolidated Fund of India;

viii Use of Aadhaar as the sole identity will not prevent pilferage and diversion

of funds and subsidies, as faulty identification is only one of the factors that

contributes to it; and

ix The Aadhaar project conditions the grant of essential benefits upon the

surrender of individual rights.

Mr Gopal Subramanium, learned Senior Counsel, made the following

submissions:
PART C

i The Aadhaar project violates dignity under
Article 21
of the Constitution as

recognised in the judgments- in Puttaswamy, NALSA47 and

Subramanian Swamy48;

ii The Aadhaar project is unconstitutional as it seeks a waiver of

fundamental rights;

iii The Aadhaar project violates the guarantees of substantive and

procedural reasonableness under Articles 14,19 and 21;

iv Aadhaar perpetrates exclusion from social security schemes and is

therefore discriminatory under
Article 14;

v The Aadhaar Act lacks legitimacy in its object in so far as it validates a

breach of fundamental rights retrospectively;

vi Rights and entitlements conferred under the Constitution cannot be based

on algorithmic probabilities which UIDAI cannot control;

vii No consequence is prescribed for non-authentication under the Aadhaar

Act;

viii The Aadhaar Act violates Part IX of the Constitution, which provides for

decentralisation (to Panchayats), while the Aadhaar scheme strikes at the

federal structure of the Constitution; and

47 (2014) 5 SCC 438
48 (2016) 7 SCC 221
PART C

ix Breaches under the Aadhaar Act cannot be cured.

Mr Arvind Datar, learned Senior Counsel has submitted:

i Rule 9 of the PMLA (Second Amendment) Rules, 2017 which requires

mandatory linking of Aadhaar with bank accounts is unconstitutional and

violates
Articles 14
, 19(1)(g)
, 21
and
300A
of the Constitution, Sections 3,

7 and 51 of the Aadhaar Act, and is also ultra vires of the provisions of

the
PMLA Act, 2002
on the following grounds:

a. Under the impugned amended Rules, linkage of Aadhaar numbers to

bank accounts is mandatory and persons not enrolling for Aadhaar

cannot operate a bank account, which violates the spirit of
Article 14
in

entirety in so far it arbitrarily metes out unequal treatment based on

unreasonable classification;

b The impugned Rules are violative of
Article 19(1)(g)
as the Rules refer

to companies, firms, trusts, etc., whereas the Aadhaar Act is only to

establish identity of “individuals”;

c Non-operation of a bank account, even for a temporary period, leads

to deprivation of an individual's property and therefore constitutes a

violation under
Article 300A
of the Constitution, which provides that

deprivation can be done only by primary legislation; and
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d The Rule has no nexus to the object of the
PMLA Act
, as the Act has

no provision to make bank accounts non-operational;

ii
Section 139AA
of the Income Tax Act, 1961 is liable to be struck down as

violative of
Articles 14
, 21
and
19(g)
of the Constitution;

iii The decision in Binoy Viswam v Union of India49 requires re-

consideration in view of the nine judge Bench decision in Puttaswamy;

iv In view of serious deficiencies in the Aadhaar Act, there is a need for

guidelines under
Article 142
to protect inter alia, the right to privacy and to

implement the mandate of the nine judge Bench in Puttaswamy;

v If the Aadhaar project is not struck down, it should be confined only for

identification or authentication of persons who are entitled to subsidies,

benefits and services for which expenditure is incurred from the

Consolidated Fund of India;

vi Sections 2(g), 2(j) 7, 57 and 59 of the Aadhaar Act violate
Articles 14
, 21

and
300A
of the Constitution; and

vii PMLA Rule 9 is arbitrary as it is contrary to the RBI Master Circular

(issued in 2013), which provided a list of documents that were to be

treated as ‘identity proof’, in relation to proof of name and proof of

residence.

49(2017) 7 SCC 59
PART C

Mr P Chidambaram, learned Senior Counsel argued that the Aadhaar Act

could not have been passed as a Money Bill. Thus, he submitted:

i The only difference between financial bills and money bills is the term

“only” in
Article 110
of the Constitution which implies that the scope of

money bills is narrower than the scope of financial bills and provisions

relating to money bills must thus be construed strictly;

ii The Aadhaar Act, which was passed as a money bill, should be struck

down since many of its provisions such as
Section 57
have no relation to

the nature of a Money Bill and bear no nexus to the Consolidated Fund of

India;

iii Since Money Bills can only be introduced in the Lok Sabha, on account of

the curtailment of the powers of the Rajya Sabha and the President, the

relevant provisions must be accorded a strict interpretation;

iv While
Article 110(3)
provides that the decision of the Speaker of the Lok

Sabha as to whether a Bill is a ‘Money Bill’ shall be final, the finality is

only with regard to the Parliament and does not exclude judicial review;

and

v Since the legislative procedure is illegal and the power of the Rajya

Sabha has been circumvented to disallow legislative scrutiny of the
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Aadhaar bill, provisions of the Act cannot be severed to save the Act and

the Act is liable to be struck down as a whole by the Court.

Mr KV Vishwanathan, learned Senior Counsel made the following

submissions:

i All acts done prior to the passage of the Act are void ab initio and are not

saved or validated by
Section 59
. In any event,
Section 59
is invalid;

ii Collection, storage and use of data under the Aadhaar project and Act

are invalid for the following reasons:

a. The Aadhaar Act and the surrounding infrastructure has made the

possession of Aadhaar de facto mandatory;

b. Compulsory collection of identity information violates various facets of

the right to privacy - bodily privacy, informational privacy and

decisional autonomy;

c.
The Act
is unconstitutional since it collects the identity information of

children between 5-18 years without parental consent;

d. Centralised storage of identity information and the unduly long period

of retention of transaction data and authentication records is

disproportionate;
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e.
The Act
and Regulations preclude Aadhaar number holders from

accessing or correcting their identity information stored on the CIDR;

and

f.
The Act
and Regulations lack safeguards to secure sensitive personal

data.

iii Services like health related services, and those related to food, pensions

and daily wages claimed under
Section 7
of the Act have been denied

because of biometric failure. Biometric infrastructure operates on a

probabilistic system, which cannot be ‘one hundred percent infallible’.

Thus, the State needs to take steps to prevent the denial of benefits by

adopting alternate methods for verification of identity. This is absent at

present, resulting in a violation of
Articles 14

& 21;

iv No provision is made for a hearing against omission and deactivation of

the Aadhaar number, which violates the principles of natural justice; and

v Sections 2(g), 2(j), 2(k) and 23(2) of the Aadhaar Act suffer from

excessive delegation and the allied regulations are vague, manifestly

arbitrary and unreasonable.

Mr Anand Grover, learned Senior Counsel has submitted thus:
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i The Aadhaar project extends far beyond the scope of the Aadhaar Act

with no procedural safeguards. Hence it violates
Article 21
in as much as

it is without the support and sanction of law. The data collected is

unauthorised, excessive and being illegally shared;

ii The use of biometric technology to establish identity is uncertain,

unproven and unreliable leading to exclusion and a violation of
Articles 14

and
21;

iii The lack of security in the Aadhaar project violates the right to privacy

under
Article 21;

iv Excessive powers have been delegated to the UIDAI through the

Aadhaar Act; and

v
Sections 33(2)
and
of the Act are vague, overbroad and

constitutionally invalid.

Ms Meenakshi Arora, learned Senior Counsel contended that:

i The general and indiscriminate retention of personal data, including meta-

data, and the ensuing possibility of surveillance by the State has a chilling

effect on fundamental rights like the freedom of speech and expression,

privacy, and dignity;
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ii Making Aadhaar the sole means of identification for various services

impinges upon dignity as it amounts to requiring a license for the exercise

of fundamental rights; and

iii The Aadhaar project does not contain any specific provisions for data

protection, apart from a mere general obligation on UIDAI, which is a

violation of the obligation of the State to ensure that the right to life,

liberty, dignity and privacy of every individual is not breached under Part

III of the Constitution.

Mr Sajjan Poovayya, learned Senior Counsel has urged the following

submissions:

i The Aadhaar Act fails to satisfy the constitutional test of a just, fair and

reasonable law;

ii Maintenance of Aadhaar records by the State under
Section 32
is an

unwarranted intrusion by the State;

iii Use of personal information under
Section 33
is an unwarranted intrusion

by the State;

iv
Section 57
of the Act is contrary to the principle of purpose limitation; and
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v
Sections 2(g)
and
2(j)
, the proviso to
Section 3(1)
,
Section 23(2)(g)
and

Section 23(2)(n)
read with
Section 54(2)(l)
, and
Section 29(4)
of the Act

suffer from the vice of excessive delegation.

Mr CU Singh, learned Senior Counsel, argued that the rights of the child are

violated through the Aadhaar project. A child has no right to give consent or to

enter into a contract. A child in India, under law, has no power or right to bind

herself to anything, to consent or enter into contracts. In this background,

there is no compelling state interest to mandate Aadhaar for children. The

fundamental right of a child to education cannot be made subject to production

of Aadhaar. These requirements are not only contrary to domestic legislation

protecting the rights of children but also against India’s international

obligations. Learned counsel also spoke of the violation of the rights of

homeless people who are denied benefits due to the lack of a fixed abode.

Mr Sanjay Hegde, learned Senior Counsel has urged that since there is no

‘essential practice’ involved, exemptions must be allowed from the mandatory

nature of the Aadhaar Act on the grounds of freedom of conscience under

Article 25
of the Constitution.

Ms Jayna Kothari, learned Counsel arguing on behalf of an intervenor

organization for transgender persons and sexual minorities urged that the
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Aadhaar Act discriminates against sexual minorities. Aadhaar Regulations

require demographic information. The enrolment form has a third gender, but

there is no uniformity across the board, and the documents that have to be

produced to get an Aadhaar card do not always have that option. Aadhaar is

being made mandatory for almost everything but transgender persons cannot

get an Aadhaar because they do not have the gender identity documents that

Aadhaar requires. This non-recognition of gender identity leads to denial of

benefits which is violative of both
Articles 14
and
21.

It has also been argued before us in an intervention application that denial of

Aadhaar to Non-Resident Indians leads to discrimination when NRIs seek to

avail of basic services in India.

C.2 Respondents’ submissions

Mr KK Venugopal, Learned Attorney General for India, has submitted thus:

i. For the period prior to coming into force of the Aadhaar Act, because of

the interim orders passed by the SC, obtaining an Aadhaar number or

enrollment number was voluntary, and hence there was no violation of

any right;

ii. Section 59 of the Aadhaar Act protects all actions taken from the period

between 2010 till the passage of the Aadhaar Act in 2016;
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iii. The judgments in MP Sharma and Kharak Singh being those of 8 and 6

judges respectively, holding that the right to privacy is not a fundamental

right, judgments of smaller benches delivered during the period upto

Puttaswamy would be per incuriam. Hence, the State need not have

proceeded on the basis that a law was required for the purpose of getting

an Aadhaar number or an enrolment number. As a result, the

administrative actions taken would be valid as well as the receipt of

benefits and subsidies by the beneficiaries;

iv. Subsequent to the Aadhaar Act, the petitioners would have to establish

that one or more of the tests laid down by the nine judge bench in

Puttaswamy render the invasion of privacy resulting from the Aadhaar

Act unconstitutional. The tests laid down in Puttaswamy have been

satisfied and hence the Aadhaar Act is not unconstitutional for the

following reasons:

a. The first condition in regard to the existence of a law has been

satisfied;

b. Legitimate state interests such as preventing the dissipation of social

welfare benefits, prevention of money laundering, black money and

tax evasion, and protection of national security are satisfied through

the Act;
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c. The Aadhaar Act satisfies the test of proportionality by ensuring that a

“rational nexus” exists between the objects of the Act and the means

adopted to achieve its objects; and

d. For the purpose of testing legitimate State interest and proportionality,

the Court must take note of the fact that each one of the subsidies and

benefits under
Section 7
is traceable to rights under
Article 21
of the

Constitution - such as the right to live with human dignity, the right to

food, right to shelter, right to employment, right to medical care and

education. If these rights are juxtaposed with the right to privacy, the

former will prevail over the latter.

v. The Aadhaar Act was validly passed as a Money Bill on the following

grounds:

a. The term ‘targeted delivery of subsidies’ contemplates an expenditure of

funds from the Consolidated Fund of India, which brings the Aadhaar

Act within the purview of a Money Bill under
Art. 110
of the Constitution;

b.
Sections 7
,
,
and the Preamble of the Act also support its

classification as a Money Bill;

c. The Aadhaar Act has ancillary provisions, but they are related to the

pith and substance of the legislation which is the targeted delivery of

subsidies and benefits; and

d.
Section 57
of the Act is saved by
Article 110 (1) (g)
of the Constitution as

it is a standalone provision and even if a Bill is not covered under
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clauses (a) to (f) of Article110(1), it can still be covered under Article110

(1) (g).

Mr Tushar Mehta, learned Additional Solicitor General, submitted:

i.
Section 139AA
of the Income Tax Act, was examined in Binoy Viswam

in the context of
Article 19
and fulfills the three tests laid down under

Puttaswamy as well as the test of manifest arbitrariness laid down in

Shayara Bano v Union of India50
;

ii. The demographic information that is required for Aadhaar enrollment is

already submitted while obtaining a PAN card and therefore individuals

do not have a legitimate interest in withholding information;

iii. Linking Aadhaar to PAN is in public interest on the following grounds:

a. The State has a legitimate interest in curbing the menace of black

money, money laundering and tax evasion, often facilitated by

duplicate PAN cards, and the linking of Aadhaar to the PAN card will

ensure that one person holds only one PAN Card, thereby curbing

these economic offences;

b. Aadhaar-PAN linking is in public interest and satisfies the test of

proportionality and reasonableness;

50 (2017) 9 SCC 1
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c. The individual interest gives way to a larger public interest and a

statutory provision furthering state interest will take precedence over

fundamental rights;

d. The Court must not interfere with the Legislature’s wisdom unless the

statutory measure is shockingly disproportionate to the object sought

to be achieved;

e. India is a signatory to various international treaties under which it has

obligations to take action to curb the menace of black money and

money laundering in pursuance of which measures including the

amendments to inter alia the Income Tax Act and the PMLA Act and

Rules thereunder, have been brought about by the legislature;

f. Statutory provisions under Aadhaar Act and Income Tax Act are distinct

and standalone. Moreover, the validity of one provision cannot be

examined in the light of the other;

g. Ascribing a (mandatory or voluntary) character to the provisions of a

statute is Parliament’s prerogative and cannot be questioned by

courts; and

h. Rule 9 of the amended PMLA Rules that mandates furnishing of an

Aadhaar number to open a bank account is not ultra vires the Aadhaar

Act. Similarly, the Rule that an existing bank account will become non-

operational if not linked with Aadhaar within six months is not a
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penalty but a consequence to render the accounts of money

launderers non-operational.

Mr Rakesh Dwivedi, learned Senior Counsel, has submitted:

i. The right to privacy exists when there is a reasonable expectation of

privacy. However, this reasonable expectation of privacy differs from one

dataset to another since the Aadhaar Act draws a distinction between

demographic information, optional demographic information (eg. mobile

number), core biometric information (fingerprints and iris scans) and

biometric information such as photographs;

ii. Alternatively, the applicability of
Article 21
has to be confined and limited

to core biometric information;

iii. Fundamental rights are not absolute and can be restricted if permitted

specifically.
Article 21
expressly envisages deprivation by laws which

seek to carry out legitimate objectives and are reasonable and

proportionate;

iv. The Aadhaar Act does not cause exclusion because if authentication fails

after multiple attempts, then the subsidies, benefits and services, can be

availed of by proving the possession of an Aadhaar number, either by
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producing the Aadhaar card or by producing the receipt of the application

for enrolment and producing the enrolment ID number;

v. Section 7 of the Aadhaar Act protects the right to human dignity

recognized by
Article 21
of the Constitution by providing services,

benefits and subsidies. The Aadhaar Act is a welfare scheme in

pursuance of the State’s obligation to respect the fundamental rights to

life and personal liberty; to ensure justice (social, political and economic)

and to eliminate inequality (
Article 14
) with a view to ameliorate the lot of

the poor and the Dalits;

vi. Socio-economic rights must be read into Part III of the Constitution since

civil and political rights cannot be enjoyed without strengthening socio -

economic rights;

vii. A welfare State has a duty to ensure that each citizen has access at least

to the basic necessities of life. The idea of a socialist state under a

mandate to secure justice- social, economic and political - will be

completely illusory if it fails to secure for its citizens the basic

necessities in life. There cannot be any dignity for those who suffer

starvation, subjugation, deprivation and marginalization and those who

are compelled to do work which is intrinsically below human dignity;
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viii. The Aadhaar number does not convert individuals to numbers. The

Aadhaar number is necessary for authentication and it is solely used for

that purpose. The petitioners have conflated the concepts of identity and

identification. Authentication through a number is merely a technological

requirement which does not alter the identity of an individual;

ix. Even if there is a conflict between the right to privacy and the right to food

and shelter, the Aadhaar Act strikes a fair balance. The Aadhaar Act

ensures human dignity and the right to life and liberty, hence there would

be no reasonable expectation of privacy and autonomy;

x. The requirement to obtain an Aadhaar number under the Aadhaar Act

does not reflect a lack of trust in citizens. Authentication by the State

does not presume that all its citizens are dishonest. The provisions of the

Aadhaar Act are merely regulatory in nature - similar to the process of

frisking at airports or other offices - since there is no effective method to

ensure targeted delivery;

xi. The “least intrusive test” is not applicable in the present case. The

requirement that the least intrusive means of achieving the State object

must be adopted, has been rejected by Indian courts in a catena of

decisions as it involves a value judgment and second guessing the

wisdom of the legislature. Such a test violates the separation of powers

between the legislature and the judiciary;
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xii. Even assuming that the ‘least intrusive method’ test applies, the exercise

of determining the least intrusive method of identification is a technical

exercise and cannot be undertaken in a court of law;

xiii. The Petitioners who have furnished smartcards as an alternative to the

Aadhaar card, have not established that smartcards are less intrusive

than the Aadhaar card authentication process;

xiv. The ‘strict scrutiny test’ does not apply to the Aadhaar Act. That test is

conceptualised in the United States, to be only applied to ‘suspect

classifications’;

xv. Section 7 of the Aadhaar Act does not involve any waiver of fundamental

rights;

xvi. There can be no assumption of mala fide against the government or the

legislature. A mere possibility of abuse is not a ground to invalidate the

Aadhaar Act;

xvii. Through
Section 57
, Parliament intended to make the use of the Aadhaar

number available for other purposes due to the liberalization and

privatization of the economy in areas earlier occupied by the government

and public sector. Many private corporate bodies are operating parallel to

and in competition with the public sector such as in banking, insurance,
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defence, and health. These are core sectors absolutely essential for

national integrity, to the national economy and the life of people;

xviii.
Sections 2(g)
, and (j) read with
Section 54(2)(a)
and
Section 54(1)
do not

suffer from excessive delegation of power to UIDAI and there are

sufficient guidelines coupled with restrictions. The regulation making

power of the Authority under the Act is limited by the use of the

expression ‘such other biological attribute’ which will be interpreted

ejusdem generis with the categories of information mentioned before

namely, fingerprints and iris scan. These categories have certain

characteristics: firstly, they do not contain genetic information; secondly,

they are non-intrusive; thirdly, apart from carrying out authentication they

do not reveal any other information of the individual; fourthly, these are

modes of identification used for identifying a person even without digital

technology; fifthly, they are capable of being used for instantaneous

digital authentication; and sixthly, they are biological attributes enabling

digital authentication. The addition of biological attributes, under
Section
, must mandatorily be laid before the Parliament under
Section 55
. This

is an additional check on the regulation making power of UIDAI;

xix. Under
Section 2(k)
, which defines demographic information, certain

sensitive categories of information such as ‘race, religion, caste, tribe,

ethnicity, language, records of entitlement, income or medical history’ of
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the person are excluded. The term ‘other relevant information’ has to be

construed ejusdem generis and would have to be necessarily

demographic in nature as contrasted with biometric information;

xx. Aadhaar is necessary, as 3% of India’s GDP amounting to trillions of

rupees is allocated by Governments towards subsidies, scholarships,

pensions, education, food and other welfare programmes. But

approximately half of if does not reach the intended beneficiaries.

Aadhaar is necessary for fixing this problem as no other identification

document is widely and commonly possessed by the residents of the

country and most of the other identity documents do not enjoy the quality

of portability;

xxi. The enrolment and authentication processes under the Aadhaar Act are

strongly regulated so that the data is secure;

xxii. The security of the CIDR is also ensured through adequate measures and

safeguards;

xxiii. The Aadhaar Act ensures that UIDAI has control over the requesting

entity during the authentication process;

xxiv. Enrolment Regulations ensure that the requirement of informed consent

of individuals is fulfilled while securing the Aadhaar card in the following

ways:
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a. Firstly, the resident is given an opportunity of verifying his or her

information for accuracy before uploading;

b. Secondly, the details and the supporting documents are provided by

the resident, or an introducer (in specific cases);

c. Thirdly, the enrolling agency is obliged to inform the individual about

the manner in which the information shall be used, the nature of

recipients with whom the information is to be shared during

authentication; and the existence of a right to access information, the

procedure for making request for such access and details of the

person/ department to whom a request can be made; and

d. Fourthly, the uploading of information is done in the presence of the

individual.

xxv. When an individual makes a choice to enter into a relational sphere then

his or her choice as to mode of identification would automatically get

restricted on account of the autonomy of the individuals or institution with

whom they wish to relate. This is more so where the individual seeks

employment, service, subsidy or benefits;

xxvi. The Central government has the power to direct the linking of Aadhaar

card, with SIM card, as it is proportional to the object sought to be

achieved in the interest of national security;
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xxvii. Regarding the process of authentication and metadata retained under

the Act, it is submitted:

a. The only purpose of the Aadhaar project is authentication and there is

no power under the Act to analyze data;

b. The Aadhaar Act does not involve big data or learning algorithms. It

merely utilizes a matching algorithm for the purpose of authentication;

c. Metadata contemplated is process or technical metadata and does not

reveal anything about the individual.
Section 2(d)
of the Act defines

“authentication record” to mean the record of the time of

authentication, identity of the RE and the response provided by the

Authority”, and the relevant authentication regulation,
Regulation 26
,

does not go beyond the scope of
Section 2(d)
of the Act;

d. Moreover,
Regulation 26
and
Section 32(3)
of the Act prohibit the

Authority from collecting or storing any information about the purpose

of authentication; and

e. Only limited technical metadata is required to be stored in an effort to

exercise control over REs by way of audits.

xxviii. Regarding the security of the Aadhaar data, it is submitted:

a. The provisions of the
Information Technology Act, 2000
and the

punitive measures provided there are made applicable to Aadhaar

data under Section 30 of the Aadhaar Act; and
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b. Anyone attempting to gain unauthorized access to the CIDR faces

stringent punishment, including imprisonment upto 10 years.

xxix. On the control exercised by the Authority over the Requesting Entities

(RE), the following was urged before the Court:

a. The standard of control exercised by the Authority on the Requesting

Entities is ‘fair and reasonable’ as laid down under
Article 21
of the

Constitution;

b. This control includes requirements that the RE’s procure the

fingerprint device from vendors controlled by the Authority, with the

Authority also providing the hardware and software of the device. The

device is subject to quality checks, and must be certified by the

Authority before being used by the RE. The Authority also takes

measures to ensure that data is sent to it in an encrypted form;

c. The license is given to the RE from the Authority only after an audit of

the RE is conducted, and the audit report is approved; and

d. The data collected by these REs is segregated and there exists no

way of aggregating this data. During authentication requests, the full

identity information of the individual will never be transmitted back to

the REs by the Authority as there exists a statutory bar from sharing

Biometric information under
Sections 29 (1) (a)
and
29(4)
of the Act.
PART C

xxx. UIDAI has entered into licensing agreements with foreign biometric

solution providers (BSP) for software. Even though the source code of the

software is retained by the BSP as it constitutes their intellectual property,

the data in the server rooms is secure as the software operates

automatically and the biometric data is stored offline. There is no

opportunity available to the BSP to extract data as they have no access

to it;

xxxi. Prior to the enactment of the Aadhaar Act, the Aadhaar project was

governed by the provisions of the
Information Technology Act, 2000
.

Section 72A
of the Information Technology Act, 2000 provides for

punishment for disclosure of information in breach of law or contract;

xxxii. The architecture of the Aadhaar Act does not enable any real possibility,

proximate or remote, of mass surveillance in real time by the State;

xxxiii. The giving of identity information and undergoing authentication has no

direct and inevitable effect on
Article 19(1)(a).
Alternatively, even if
Article

19(1)(a)
is attracted,
Article 19(2)
would protect Section 7 of the Aadhaar

Act as it has a direct and proximate nexus to public order and security of

the State;

xxxiv. In response to the argument that the requirements of Aadhaar number

and authentication for benefits, services and subsidies would be ultra
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vires
Article 243-G
and items 11, 12, 16, 17, 23, 25 and 28 of the XIth

Schedule, it is submitted that the Panchayats get only such powers as

are given to it by the legislature of the State.
Article 243-G
is merely

enabling. There is no compulsion upon the State to endow the

Panchayats with powers relating to the items specified in the XIth

Schedule;

xxxv. On the validity and purpose of
Section 57
, it is urged:

a.
Section 57
is not an enabling provision. It merely provides, as it states,

that the provisions of the Act would not prevent the use of Aadhaar for

other purposes;

b. However,
Section 57
imposes a limitation on any such use for other

purposes, that the use must be sanctioned by any law in force or any

contract;

c. Another limitation is presented by the proviso to
Section 57
, which

says that the use of the Aadhaar number shall be subject to the

procedure and obligations under
Section 8
and Chapter VI, which

would necessarily also subject it to the operation of Chapter VII

(dealing with Offences & Penalties) of the Act;

d. Under
Section 57
, the State, a body corporate or any other person

cannot become Requesting Entities unless the limitations provided for

under
Section 57
are complied with;
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e.
Section 57
imposes limitations, and the use is backed by

authentication, protection of information and punitive measures;

f. The expressions ‘pursuant to any law or any contract’, and ‘to this

effect’- necessarily entail that where the State makes a law or any

body corporate enters into a contract, the law or contract should be

prior in point of time to the making of any application for becoming a

Requesting Entity or a Sub-Authentication User Agency under

Regulation 12
of the Authentication Regulations; and

g. A large number of small service providers simply cannot become

Requesting Entities under
Section 57
, as they will not meet the

rigorous standard demanded by the eligibility conditions which are

prescribed by the Regulations to become Authentication User

Agencies (AUA)/ KYC User Agencies (KUA). Therefore, this provision

does not create a situation whereby the common man is required to

undergo authentication in all activities.

xxxvi. The Aadhaar Act is not exclusionary but inclusionary since it provides

all citizens the bare necessities for a dignified existence;

xxxvii. Having the option to opt-out is not a constitutional requirement.

Mr Neeraj Kishan Kaul, learned Senior Counsel, made the following

submissions:
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i. Aadhaar is a speedy and reliable tool for identification and authentication

and there is no reason to hold it invalid;

ii. Private entities and AUAs/KUAs that have built their businesses around it

should be allowed to use Aadhaar authentication services;

iii.
Section 57
is an enabling provision and private players should be given

the choice to use the Aadhaar authentication services as a tool for

verification if there is a consensus between private players’ and their

customers;

iv. Aadhaar authentication has benefited women in villages and migrants and

increased the reach of microfinance institutions, thus reducing predatory

financing; and

v. A statute cannot be struck down on the ground that there is scope for

misuse.

Mr Jayant Bhushan, learned Senior Counsel appearing for the Reserve Bank

of India urged the following submissions before the Court:

i. RBI, in exercise of its powers under the
Banking Regulation Act, 1949

and Rule 9 of the PMLA Rules, 2005 issued an amended Master Circular

on April 20, 2018 which mandates that Aadhaar has to be submitted to a

Reporting Entity. This circular conforms with the PMLA rules;
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ii. Rule 9(14) of the PMLA Rules provides that the Regulator- the RBI in this

case, lay down guidelines incorporating the requirements of sub-rules

9(1)-(13), which would include enhanced or simplified measures to verify

identity; and

iii. The requirement of submission of Aadhaar to the RE is in exercise of this

power under Rule 9(14).

Mr Gopal Sankarnarayanan, learned counsel, has submitted:

i. The Aadhaar Act as a whole does not violate the fundamental right to

privacy;

ii. The factors that save the Aadhaar Act from failing the proportionality test

are (a) Voluntariness to subject one ’s identity information to obtain

the Aadhaar ; (b) Informed consent when such identity information is

utilized; and (c) A draw on the Consolidated Fund of India;

iii. Right to identity is a fundamental right as a part of the right to dignity,

which is being realized by the Aadhaar Act;

iv. The right to identity is also recognized under India’s international

obligations under instruments such as the UDHR and ICCPR;

v. In view of the large scale enrolments that have already taken place and

the expenditure incurred by the Government out of public funds, it would
PART C

be in overarching public interest to give
Section 59
full effect. If this were

not done, the only avenue available to the Government would be to

undertake the mammoth enrolment task all over again under a new

regime, affording only a pyrrhic victory to the Petitioners, while there

would be substantial revenue losses to the Government and

deprivation of beneficial schemes to those eligible, in the meanwhile;

vi. Certain provisions of the Aadhaar Act have to be struck down or read

down so that the Act as a whole can continue to serve its essential

purpose - namely
Sections 47
,
Section 8(4)
and
Section 29(2)
of the Act;

and

vii.
Section 139AA
of the Income Tax Act, 1961 violates
Article 14
and
of

the Constitution.

Mr Zoheb Hossain, learned Counsel, made the following submissions:

i. The right to privacy cannot be asserted vicariously on behalf of others in

a representative capacity in a Public Interest Litigation, because unlike

other constitutional rights, right to privacy is a personal right. No
Section 7

beneficiary has claimed a violation of their right to privacy despite the

pendency of the petitions for 6 years before this Court and therefore, the

Petitioners' challenge, in a representative capacity, to
section 7
on the
PART C

ground of a violation of the right to privacy of third parties is not

maintainable;

ii. There is no increased threat to privacy due to Aadhaar at the level of

requesting entities (RE) for the following reasons:

a. REs are already in possession of personal information of individuals

and inclusion of Aadhaar does not in any manner increase the threat

to privacy;

b. Any information disclosed by REs will not be on account of Aadhaar

and will have to be dealt with under domain specific legislations, or a

data protection regime or agreements between the REs and their

customers; and

c. REs have data of their own customers and not of other REs’

customers, so there is no possibility of surveillance.

iii. Safeguards against disclosure of information in the Aadhaar Act are

superior to the safeguards
laid down in
the PUCL case51.
Sections 8
,
and
along with Chapter VII which deals with Offences and Penalties,

provide for protection of information and
Section 33
lays down a strict

procedure for disclosure. Even though the Aadhaar Act is not required to

meet the same standard as
laid down in
PUCL, the safeguards in the Act

are not only adequate with regard to identity information and

authentication records, but far exceed the safeguards laid down PUCL;

51 (2011) 14 SCC 331
PART C

iv. The petitioners cannot contend that Section 33(2) of the Aadhaar Act

goes against the principles of natural justice and is disproportionate (as it

does not define the term “national security”) for the following reasons:

a. What is in the interest of “national security” is not a question of law but

that of policy lying in the executive domain; and

b. Principles of natural justice cannot be observed strictly in a situation

implicating national security. In such cases, it is the duty of the court to

read into and provide for statutory exclusion.

v. The laws, which are under challenge, are a part of a concerted scheme to

promote redistributive justice and ensure substantive equality, in

furtherance of
Articles 14
, 38
, 39B and 39C. These laws ensure a more

transparent and a cleaner system, root out revenue leakages and evasion

of taxes, thereby giving genuine beneficiaries their rightful share in

subsidies;

vi. The object of the Aadhaar Act, contrary to what the petitioners have

argued, is totally unrelated to suppression of freedom of speech and any

incidental effect, if at all, would not implicate the right under
Article

19(1)(a);

vii. The petitioners cannot contend that Section 47 of the Aadhaar Act is

arbitrary or unreasonable for the following reasons:
PART C

a. The offences and penalties under the Act are intended to maintain the

purity of data of the Aadhaar number holder and the integrity of the

CIDR, which are integral in achieving the object of the Act;

b. Enrolment, storage of data in CIDR, and authentications are so vast

and inherently technical that any breach of the provisions, can be

effectively dealt with by the UIDAI;

c. The individual has not been left remediless, as he/she can make a

complaint to the UIDAI directly or through the grievance redressal

centre [
Regulation 32
of the Aadhaar (Enrolment and Update)

Regulations, 2016]. After a complaint has been made, the UIDAI

would be obliged to examine the complaint and accordingly lodge a

complaint in a Court in terms of Section 47 of the Aadhaar Act;

d. Section 56 of the Aadhaar Act makes it clear that application of other

laws, like the
IT Act
, is not barred.

viii. Aadhaar must be made mandatory under Section 7 of the Aadhaar Act for

the following reasons:

a. Because of the involvement of biometrics, it is almost impossible for

one person to obtain two Aadhaar numbers. This will help in checking

the entry of fake and duplicate beneficiaries into any welfare scheme;

b. Other methods which were employed over the last 70 years to check

duplication, siphoning of money in welfare schemes, large-scale tax

evasion, generation of black money, and appearance and re-
PART C

appearance of duplicates, have turned out to be futile. If Aadhaar is

made voluntary, the same problems are likely to creep back into the

system; and

c. The State is bound to deploy the best technology available to it to

ensure proper allocation of resources as there is a constitutional

mandate upon the State under
Article 14
to efficiently utilize its

resources.

ix. There is no conflict between the Aadhaar Act and the Income Tax Act as

they are both stand alone laws and their scope of operation is different;

x. Through the Aadhaar Act, the State is furthering the following obligations

under Part III and Part IV of the Constitution and international obligations:

a. The State has a positive obligation for securing socio-economic rights

like the basic right to food, shelter and livelihood of people arising out

of
Article 21
, even though it is worded negatively;

b. The Supreme Court has observed that civil & political rights and socio-

economic rights in India are placed on the same pedestal [PUCL].

Aadhaar is a means of achieving the latter set of rights. The

proportionality analysis would therefore require a balancing of rights in

this context;
PART C

c.
Articles 38
, 39(b)
, (c), (e), (f)
, 41
, 43
, 47
and
51(c)
impose a

constitutional mandate on the State to ensure effective and efficient

utilization of public resources;

d. The State is the trustee of public resources towards people, and

inaction of the State to plug the continuous leakage of public

resources and revenues would violate both, the principle of non-

arbitrariness and reasonableness envisaged by
Article 14
as well as

the constitutional doctrine of public trust; and

e. The creation of Aadhaar infrastructure and enactment of the Aadhaar

Act is a step towards the government pursuing India’s international

obligations under the ICESCR.

xi. While testing proportionality, reasonableness of a restriction has to be

determined in an objective manner from the standpoint of the interests of

the general public and not from the perspective of an individual right

bearer claiming invasion52; and

xii. With regard to the alleged conflict between Section 29(2) of the Aadhaar

Act and
Section 4(b)(xii)
of the RTI Act, the former cannot be struck down

as unconstitutional for the following reasons:
Modern Dental College and Research Centre v State of Madhya Pradesh
, (2016) 7 SCC 353.
PART D

a. A provision can be struck down only if it is in violation of the

Constitution or if the legislature lacks competence, not on the ground

that it is in conflict with another law;

b. In any case, the obligations of public authorities under both these

provisions are different, as the public authority under the
RTI Act
can

publish the details of beneficiaries from the existing database and the

information received by the UIDAI is not required to be shared or

displayed publicly. However, if any information is displayed publicly, it

can be challenged by an aggrieved person on the ground of privacy

which would be completely unrelated to the present challenge;

c. The two laws operate in their distinct fields and there is no conflict

between them; and

d. A conflict between two statutes is required to be reconciled through

harmonious construction. However, since there is no conflict between

these two laws, there is no need for harmonious construction.

D Architecture of Aadhaar: analysis of the legal framework

39 The architecture of the Aadhaar Act envisages the creation of a unique

identity for residents on the basis of demographic and biometric information.

The Act
envisages a process of identification by which the unique identity
PART D

assigned to each individual is verified with the demographic and biometric

information pertaining to that individual which is stored in a centralised

repository of data known as the Central Identities Data Repository (CIDR). The

former part of the legislative design is implemented by its regulatory provisions

governing enrolment53 of individuals who would be allotted a unique identity

number. The latter part of the legislative design consists of the process of

‘authentication’.

40 In order to facilitate an understanding of the key aspects of the law,

Section 2
provides a dictionary of meanings. ‘Aadhaar number’ is defined in

Section 2(a)
as the identification number issued to the individual under sub-

section (3) of
Section 3
. The individual to whom an Aadhaar number is issued

is described in
Section 2(b)
as the ‘Aadhaar number holder’. The expression

‘authentication’ is defined in
Section 2(c)
thus:

“(c) “Authentication” means the process by which the
Aadhaar number alongwith demographic information or
biometric information of an individual is submitted to the
Central Identities Data Repository for its verification and such
Repository verifies the correctness or lack thereof, on basis of
information available with it.”

Section 2(d)
speaks of the ‘authentication record’ as the record of the time of

authentication, the identity of the requesting entity and the response provided

by UIDAI. The crucial definitions are those of ‘biometric information’, ‘core
Section 2(m)
states: “enrolment” means the process, as may be specified by regulations, to collect
demographic and biometric information from individuals by the enrolling agencies for the purpose of issuing
Aadhaar numbers to such individuals under this Act.
PART D

biometric information’, ‘demographic information’ and ‘identity information’.

These are as follows:

“(g) “biometric information” means photograph, finger print,
Iris scan, or other such biological attributes of an individual as
may be specified by regulations;

...

(j) “core biometric information” means finger print, Iris scan, or
such other biological attribute of an individual as may be
specified by regulations;

(k) “demographic information” includes information relating to
the name, date of birth, address and other relevant
information of an individual, as may be specified by
regulations for the purpose of issuing an Aadhaar number,
but shall not include race, religion, caste, tribe, ethnicity,
language, records of entitlement, income or medical history.

...

(n) “identity information” in respect of an individual, includes
his Aadhaar number, his biometric information and his
demographic information.”

The largest subset of the above definitions consists of ‘identity information’

which is defined in an inclusive sense to comprehend the Aadhaar number,

biometric information and demographic information. Demographic information

is defined as information related to the name, date of birth and address and

other information pertaining to an individual as is specified by the regulations.

Significantly,
Section 2(k)
excludes, by a mandate, race, religion, caste, tribe,

ethnicity, language, records of entitlement, income or medical history from the

purview of demographic information. Biometric information consists, under

Section 2(g)
, of the photograph, fingerprint, Iris scan, or other such biological

attributes of an individual as may be specified by regulations. Core biometric

information in
Section 2(j)
excludes photographs (which form part of biometric
PART D

information). Apart from photographs, other biometric information is

comprehended within core biometric information and may be expanded to

include other biological attributes specified in the regulations to be made

under the Act.

41 The identity information of an individual is stored in a central depository.

Section 2(h)
defines “Central Identities Data Repository” as a centralised

database in one or more locations containing all Aadhaar numbers issued to

Aadhaar number holders along with the corresponding demographic

information and biometric information of such individuals and other related

information. The CIDR is the backbone of the Aadhaar Act. All the information

collected or created under the Act is stored in it. For the establishment and

maintenance of the CIDR, it has been provided54 under the Act that UIDAI may

engage one or more entities, which can also perform any other functions as

may be specified by regulations.
The Act
does not prohibit the engagement of

private entities for the establishment and maintenance of the CIDR.
Section 3
, pertains to the entitlement to obtain an ‘Aadhaar Number’,

which forms a part of Chapter II titled ‘enrolment’.
Section 3
comprises of

three parts: (i) an entitlement of every resident to obtain an Aadhaar number;

(ii) a requirement of submitting demographic and biometric information to be

enrolled; and (iii) a process of undergoing enrolment.
Section 3
provides thus:

54 Section 10, Aadhaar Act
PART D

“Section (3): Aadhaar Number.-

(1) Every resident shall be entitled to obtain an Aadhaar
number by submitting his demographic information
and biometric information by undergoing the process
of enrolment:

Provided that the Central Government may, from time
to time, notify such other category of individuals who
may be entitled to obtain an Aadhaar number.

(2) The enrolling agency shall, at the time of enrolment,
inform the individual undergoing enrolment of the
following details in such manner as maybe specified
by regulations, namely:-

(a) The manner in which the information shall be
used;

(b) The nature of recipients with whom the information
is intended to be shared during authentication; and

(c) The existence of a right to access information, the
procedure for making requests for such access
and details of the person or department in-charge
to whom such requests can be made.

(3) On receipt of the demographic information and
biometric information under sub-section (1), the
Authority shall, after verifying the information, in such
manner as may be specified by regulations, issue an
Aadhaar number to such individual.”

Significantly, sub-section (1) of
Section 3
recognises an entitlement, of every

resident55 to obtain an Aadhaar number. An entitlement postulates a right. A

right contemplates a liberty, for it is in the exercise of the liberty that the

individual asserts a right. What is a matter of an entitlement is evidently a

matter of option and not a compulsion. That constitutes the fundamental

postulate of
Section 3
. However, the entitlement to obtain the Aadhaar
Section 2(v)
states: “resident” means an individual who has resided in India for a period or periods amounting
in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of
application for enrolment
PART D

number is conditioned by the requirement of submitting demographic and

biometric information and participating in the process of enrolment.

43 The collection of demographic and biometric information is carried out

by an enrolling agency. “Enrolling agency” has been defined under
Section

2(l)
of the Act as an agency, appointed by UIDAI or a Registrar56, for collecting

demographic and biometric information of individuals under the Act. The

enrolling agency need not be an entity of the state. The definition opens the

space for engagement of private entities in the collection of individual

information for the process of enrolment. The enrolling agencies have to set

up enrolment centers and they have to function in accordance with the

procedure specified by UIDAI.57 Sub-section (2) of
Section 3
requires the

enrolling agency to disclose to the individual, who is undergoing enrolment,

three important facets. The first is the manner in which the information which

is disclosed by the individual would be used. The second relates to the nature

of the recipients with whom the information is likely to be shared during the

course of authentication. The third is founded upon the individual’s right of

access to the information disclosed. All these three facets are crucial to the

legislative design because they try to place individual autonomy at the

forefront of the process. An individual who discloses biometric and

demographic information has a statutory entitlement to fully understand how

the information which is disclosed is going to be used and with whom the
Section 2(s)
states: “Registrar” means any entity authorised or recognised by the Authority for the purpose of
enrolling individuals under this Act
Regulation 7
, Aadhaar (Enrolment and Update) Regulations, 2016
PART D

information is likely to be shared during authentication.58 Access of the

information supplied to the individual, it has been argued, is an integral feature

of the design created by the statute. These three facets are conditions

precedent to the disclosure of information by the individual. Before the

individual does so, he or she must have a full disclosure which would enable

them to form an informed decision on the exercise of the choice which

underlies an entitlement to an Aadhaar number. The entitlement which is

recognised by sub-section (1) is enforced by the mandatory requirements of

sub-section (2). Before an Aadhaar number is issued, sub-section (3)

requires the authority to verify the information disclosed, in the manner

prescribed by regulations.
The Act
leaves it to regulations to specify how

verification will be carried out.
Sections 4
,
and
indicate the characteristics which are attributed to

Aadhaar numbers, legislative recognition of the steps necessary to ensure

financial inclusion and the requirement of periodical updation of information.

Under
Section 4
, three important features attach to the possession of an

Aadhaar number. The first is that the number is unique to one individual and

to that individual alone. Once assigned, the Aadhaar number cannot be

reassigned to any other individual. The second feature is that an Aadhaar

number is random and bears no relation to the attributes or identity of its

holder. The third feature of
Section 4
is that once assigned, an Aadhaar

number can be accepted as proof of identify of its holder “for any purpose”.
58 Section 3(2), Aadhaar Act.
PART D

Under
Section 5
, UIDAI is under a mandate to adopt special measures to

issue Aadhaar numbers to women, children, senior citizens, the differently

abled, unskilled and unorganised workers, nomadic tribes, persons who do

not have permanent places of abode and to other categories which may be

defined by the regulations.
Section 6
contains an enabling provision by which

the authority may require holders to update their demographic and biometric

information periodically, as specified under regulations. An Aadhaar number

also does not, by itself, constitute a conferment of a right of citizenship, or

domicile (
Section 9
).

45 Chapter III provides for Authentication. By virtue of
Section 7
, an

enabling provision has been made by which the Union or state governments

may require proof of an Aadhaar number for receiving subsidies, benefits and

services for which the expenditure is incurred from (or the receipts form part

of) the Consolidated Fund of India.
Section 7
is in the following terms:

“7. Proof of Aadhaar number necessary for receipt of certain
subsidies, benefits and services, etc.- The Central
Government or, as the case may be, the State Government
may, for the purpose of establishing identity of an individual
as a condition for receipt of a subsidy, benefit or service for
which the expenditure is incurred from, or the receipt
therefrom forms part of, the Consolidated Fund of India,
require that such individual undergo authentication, or furnish
proof of possession of Aadhaar number or in the case of an
individual to whom no Aadhaar number has been assigned,
such individual makes an application for enrolment:

Provided that if an Aadhaar number is not assigned to an
individual, the individual shall be offered alternate and viable
means of identification for delivery of the subsidy, benefit or
service.”
PART D

Section 3
(as explained earlier) postulates an entitlement to an Aadhaar

number. An entitlement envisages a right which may (or may not) be

exercised by the resident. An entitlement is, after all, an option.
Section 7
,

however, contemplates a requirement. It covers subsidies, benefits or

services that are charged to the Consolidated Fund of India; the connect being

either in regard to the source of expenditure or the receipts. The statutory

definitions of the expressions ‘benefit’, ‘service’ and ‘subsidy’ are contained in

clauses (f),(w) and (x) of
Section 2
which provide as follows:

“(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a group
of individuals and includes such other benefits as may be
notified by the Central Government;”

(w) “service” means any provision, facility, utility or any other
assistance provided in any form to an individual or a group of
individuals and includes such other services as may be
notified by the Central Government;

(x) “subsidy” means any form of aid, support, grant,
subvention, or appropriation, in cash or kind, to an individual
or a group of individuals and includes such other subsidies as
may be notified by the Central Government.”
Section 7
encapsulates a purpose, a condition and a requirement. The

purpose incorporated in the provision is to establish the identity of an

individual. The condition which it embodies is for the receipt of a subsidy,

benefit or service for which the expenditure is incurred or the receipts form

part of the Consolidated Fund of India. Where the purpose and condition are

fulfilled, the central or state governments may require that the individual

should (i) undergo authentication; or (ii) furnish proof of possession of an

Aadhaar number; or (iii) provide proof of an application for enrolment where
PART D

the Aadhaar number has not been assigned. Three alternatives are stipulated

in
Section 7
. Where the purpose and condition (noted above) are fulfilled, the

individual has to undergo authentication. Alternately, the individual has to

furnish proof that he or she possesses an Aadhaar number. However, if an

Aadhaar number has not been assigned to the individual, he or she would

have to make an application for enrolment. In a situation where no Aadhaar

number has been assigned as yet, the proviso stipulates that alternate and

viable means of identification would be provided to the individual for the

delivery of subsidies, benefits or services.
Section 7
indicates that while the

central or state governments can mandate that an individual must undergo

authentication as a condition for the receipt of a subsidy, benefit or service, a

failure of authentication cannot be held out as a ground to deny benefits,

subsidies or services. That is for the reason that in the absence of

authentication, possession of an Aadhaar number would suffice. Moreover,

even if an individual does not possess an Aadhaar number, the mandate of

Section 7
would be subserved by producing an application for enrolment.

Section 3
which speaks of an entitlement to obtain an Aadhaar number stands

in contrast to
Section 7
under which an Aadhaar number may be required as a

condition for the receipt of a subsidy, benefit or service. As an entitlement,

Section 3
makes the possession of an Aadhaar number optional.
Section 7
is

an enabling power by which the central or state governments may make the

requirement of an Aadhaar number compulsive or mandatory where a person
PART D

desires a subsidy, benefit or service for which expenditure is incurred from or

the receipt of which forms part of the Consolidated Fund of India.
Section 7

acts as an overriding provision over
Section 3
.

47 The manner in which an authentication is carried out is elaborated upon

by
Section 8
.
Section 8
is in the following terms:

“Authentication of Aadhaar number.-

(1) The Authority shall perform authentication of the
Aadhaar number of an Aadhaar number holder submitted by
any requesting entity, in relation to his biometric information
or demographic information, subject to such conditions and
on payment of such fees and in such manner as may be
specified by regulations.

(2) A requesting entity shall –

(a) unless otherwise provided in this Act, obtain
the consent of an individual before collecting his identity
information for the purposes of authentication in such
manner as may be specified by regulations; and

(b) ensure that the identity information of an
individual is only used for submission to the Central
Identities Data Repository for authentication.

(3) A requesting entity shall inform, in such manner as
may be specified by regulations, the individual submitting his
identify information for authentication, the following details
with respect to authentication, namely:-

(a) the nature of information that may be shared
upon authentication;

(b) the uses to which the information received
during authentication may be put by the requesting
entity; and

(c) alternatives to submission of identity
information to the requesting entity.

(4) The Authority shall respond to an authentication query
with a positive, negative or any other appropriate response
sharing such identity information excluding any core biometric
information.”

As we have noticed earlier, authentication involves a process in which the

Aadhaar number, together with the demographic or biometric information, is
PART D

submitted to the CIDR for verification and is verified to be correct or otherwise

by the repository on the basis of the information available with it. Under sub-

section (1) of
Section 8
authentication has to be performed on a request

submitted by a requesting entity. The expression ‘requesting entity’ is defined

in
Section 2(u)
as follows:

“(u) “requesting entity” means an agency or person that
submits the Aadhaar number, and demographic information
or biometric information, of an individual to the Central
Identities Data Repository for authentication.”

This definition also does not prohibit the engagement of private agencies for

the process of authentication. Under sub-section (2) of
Section 8
, every

requesting entity is bound to obtain the consent of the individual before

collecting his or her identity information for the purpose of authentication.

Moreover, the requesting entity must ensure that the identity information is

submitted only for the purpose of authentication to the CIDR. Before the

requesting entity submits the identity information for authentication, it is under

a mandate of law to disclose (i) the nature of the information that may be

shared upon authentication; (ii) the use to which information received during

authentication may be put; and (iii) alternatives to the submission of identity

information.59 During the course of authentication, UIDAI is required to

respond to an authentication query with a positive, negative or appropriate

response sharing such identity information excluding core biometric

information.60 Core biometric information cannot be shared. The modes of

59 Section 8(3), Aadhaar Act
60 Section 8(4), Aadhaar Act
PART D

authentication are as mentioned in
Regulation 4
of the Aadhaar

(Authentication) Regulations 2016. It can be based on (i) demographic

information; (ii) a one-time password with limited time validity; (iii) biometrics

or (iv) multi-factor authentication (a combination of two or more of the above).

The Requesting Agency chooses the mode according to its requirement.

48 UIDAI is the umbrella entity under the Aadhaar Act. The statutory

backing to the authority of UIDAI to undertake the responsibility for the

processes of enrolment and authentication and maintenance of CIDR has

been provided under
Chapter IV of the Act
.
Section 11
provides that the

Central Government shall, by notification, establish UIDAI, a body corporate 61,

to be responsible for the processes of enrolment and authentication and

perform such other functions as are assigned to it under the Act. The

composition of UIDAI has been provided under
Section 12
: a Chairperson

(appointed on part-time or full-time basis); two part-time Members, and the

chief executive officer who shall be the Member- Secretary, to be appointed

by the Central Government.
Section 23
enunciates the powers and functions

of the UIDAI. Sub-section (1) of
Section 23
requires UIDAI to develop the

policy, procedure and systems for issuing Aadhaar numbers to individuals and

to perform authentication.
Section 23(2)
provides an inclusive list of the

powers and functions of UIDAI:

“(2) Without prejudice to sub-section (1), the powers and
functions of the Authority, inter alia, include—

61 Section 11(2), Aadhaar Act
PART D

(a) specifying, by regulations, demographic information and
biometric information required for enrolment and the
processes for collection and verification thereof;

(b) collecting demographic information and biometric
information from any individual seeking an Aadhaar number
in such manner as may be specified by regulations;

(c) appointing of one or more entities to operate the Central
Identities Data Repository;

(d) generating and assigning Aadhaar numbers to individuals;

(e) performing authentication of Aadhaar numbers;

(f) maintaining and updating the information of individuals in
the Central Identities Data Repository in such manner as may
be specified by regulations;

(g) omitting and deactivating of an Aadhaar number and
information relating thereto in such manner as may be
specified by regulations;

(h) specifying the manner of use of Aadhaar numbers for the
purposes of providing or availing of various subsidies,
benefits, services and other purposes for which Aadhaar
numbers may be used;

(i) specifying, by regulations, the terms and conditions for
appointment of Registrars, enrolling agencies and service
providers and revocation of appointments thereof;

(j) establishing, operating and maintaining of the Central
Identities Data Repository;

(k) sharing, in such manner as may be specified by
regulations, the information of Aadhaar number holders,
subject to the provisions of this Act;

(l) calling for information and records, conducting inspections,
inquiries and audit of the operations for the purposes of this
Act of the Central Identities Data Repository, Registrars,
enrolling agencies and other agencies appointed under this
Act;

(m) specifying, by regulations, various processes relating to
data management, security protocols and other technology
safeguards under this Act;

(n) specifying, by regulations, the conditions and procedures
for issuance of new Aadhaar number to existing Aadhaar
number holder;

(o) levying and collecting the fees or authorising the
Registrars, enrolling agencies or other service providers to
PART D

collect such fees for the services provided by them under this
Act in such manner as may be specified by regulations;

(p) appointing such committees as may be necessary to
assist the Authority in discharge of its functions for the
purposes of this Act;

(q) promoting research and development for advancement in
biometrics and related areas, including usage of Aadhaar
numbers through appropriate mechanisms;

(r) evolving of, and specifying, by regulations, policies and
practices for Registrars, enrolling agencies and other service
providers;

(s) setting up facilitation centres and grievance redressal
mechanism for redressal of grievances of individuals,
Registrars, enrolling agencies and other service providers;

(t) such other powers and functions as may be prescribed.”

Under
Section 54
, UIDAI is empowered to make regulations and rules

consistent with the Act, for carrying out the provisions of the Act. Sub-section

(2) of
Section 54
provides that UIDAI may make regulations covering any of

the following matters:

“(a) the biometric information under clause (g) and the
demographic information under clause (k), and the process of
collecting demographic information and biometric information
from the individuals by enrolling agencies under clause (m) of

section 2
;

(b) the manner of verifying the demographic information and
biometric information for issue of Aadhaar number under sub-

section (3) of
section 3
;

(c) the conditions for accepting an Aadhaar number as proof
of identity of the Aadhaar number holder under sub-section
(3) of
section 4
;

(d) the other categories of individuals under
section 5
for
whom the Authority shall take special measures for allotment
of Aadhaar number;

(e) the manner of updating biometric information and
demographic information under
section 6
;

(f) the procedure for authentication of the Aadhaar number
under
section 8
;
PART D

(g) the other functions to be performed by the Central
Identities Data Repository under
section 10
;

(h) the time and places of meetings of the Authority and the
procedure for transaction of business to be followed by it,
including the quorum, under sub-section (1) of
section 19
;

(i) the salary and allowances payable to, and other terms and
conditions of service of, the chief executive officer, officers
and other employees of the Authority under sub-section (2) of

section 21
;

(j) the demographic information and biometric information
under clause (a) and the manner of their collection under
clause (b) of sub-section (2) of
section 23
;

(k) the manner of maintaining and updating the information of
individuals in the Central Identities Data Repository under
clause (f) of sub-section (2) of
section 23
;

(l) the manner of omitting and deactivating an Aadhaar
number and information relating thereto under clause (g) of
sub-section (2) of
section 23
;

(m) the manner of use of Aadhaar numbers for the purposes
of providing or availing of various subsidies, benefits, services
and other purposes for which Aadhaar numbers may be used
under clause (h) of sub-section (2) of
section 23
;

(n) the terms and conditions for appointment of Registrars,
enrolling agencies and other service providers and the
revocation of appointments thereof under clause (i) of sub-
section (2) of
section 23
;

(o) the manner of sharing information of Aadhaar number
holder under clause (k) of sub-section (2) of
section 23
;

(p) various processes relating to data management, security
protocol and other technology safeguards under clause (m) of
sub-section (2) of
section 23
;

(q) the procedure for issuance of new Aadhaar number to
existing Aadhaar number holder under clause (n) of sub-
section (2) of
section 23
;

(r) manner of authorising Registrars, enrolling agencies or
other service providers to collect such fees for services
provided by them under clause (o) of sub-section (2) of

section 23
;

(s) policies and practices to be followed by the Registrar,
enrolling agencies and other service providers under clause

(r) of sub-section (2) of
section 23
;
PART D

(t) the manner of accessing the identity information by the
Aadhaar number holder under the proviso to sub-section (5)
of
section 28
;

(u) the manner of sharing the identity information, other than
core biometric information, collected or created under this Act
under sub-section (2) of
section 29
;

(v) the manner of alteration of demographic information under
sub-section (1) and biometric information under sub-section
(2) of
section 31
;

(w) the manner of and the time for maintaining the request for
authentication and the response thereon under sub-section
(1), and the manner of obtaining, by the Aadhaar number
holder, the authentication records under sub-section (2) of

section 32
;

(x) any other matter which is required to be, or may be,
specified, or in respect of which provision is to be or may be
made by regulations.”

Section 11(1)
, read with
Sections 23(2)
and
54(2)
, indicates that UIDAI is the

sole authority vested with the power and responsibility of carrying out

numerous functions. These functions include:

(i) collection of demographic information and biometric information from

individuals;

(ii) generating and assigning Aadhaar numbers to individuals;

(iii) performing authentication of Aadhaar numbers;

(iv) maintaining and updating the information of individuals in the CIDR;

(v) omitting and deactivating of an Aadhaar number;

(vi) specifying the manner of use of Aadhaar numbers for the purposes of

providing or availing of various subsidies, benefits, services and other

purposes;
PART D

(vii) specifying the terms and conditions for appointment of Registrars,

enrolling agencies and service providers and revocation of appointments;

(viii) specifying various processes relating to data management, security

protocols and other technological safeguards under the Act;

(ix) setting up facilitation centres and mechanisms for the redressal of the

grievances of individuals, Registrars, enrolling agencies and other service

providers; and

(x) other functions prescribed by the Central government.

The Act
does not set any limits within which the sole authority of UIDAI may

operate. UIDAI has been conferred with discretionary powers as provided in

the above provisions. The architecture of Aadhaar keeps UIDAI at the centre

of all processes.

49 For the purpose of performing the functions of collecting, storing,

securing, processing of information, delivery of Aadhaar numbers to

individuals or performing authentication, clause (a) of
Section 23(3)

contemplates that UIDAI may enter into Memoranda of Understanding or

agreements with the central or state governments, Union territories or other

agencies. In discharging its functions, UIDAI may appoint, by notification, a

number of Registrars, engage and authorise such agencies to collect, store,

secure and process information or perform authentication or such other

functions in relation to it, as may be necessary for the purposes of the Act
PART D

(
Section 23 (3) (b)
). For the efficient discharge of its functions, UIDAI may also

engage consultants, advisors and other persons as may be required (
Section

23(4)
). These, like many other provisions, open the scope for the involvement

of private entities in the Aadhaar project. This is also evident from
Section 57

of the Act, which allows the use of the Aadhaar number, by the state,

corporate entities or persons to establish the identity of an individual:

“57. Act not to prevent use of Aadhaar number for other
purposes under law.-

Nothing contained in this Act shall prevent the use of Aadhaar
number for establishing the identity of an individual for any
purpose, whether by the State or any body corporate or
person, pursuant to any law, for the time being in force, or
any contract to this effect:

Provided that the use of Aadhaar number under this section
shall be subject to the procedure and obligations under

section 8
and Chapter VI.”

50 The responsibility to ensure the security of identity information and

authentication records of individuals has been placed on UIDAI. 62 UIDAI is

also required to ensure confidentiality of identity information and authentication

records of individuals,63 except in circumstances, where disclosure of

information is permitted by the Act.64
Section 28(3)
requires UIDAI to take all

necessary measures to ensure that the information in its possession or control,

including information stored in the CIDR, is secured and protected against

access, use or disclosure not permitted under the Act or regulations, and

against accidental or intentional destruction, loss or damage. For the purpose

62 Section 28(1), Aadhaar Act
63 Section 28(2), Aadhaar Act
64 Section 33, Aadhaar Act
PART D

of maintaining the security and confidentiality of the information of individuals,

UIDAI is also required, under Section 28(4), to:

“(a) adopt and implement appropriate technical and
organisational security measures;

(b) ensure that the agencies, consultants, advisors or other
persons appointed or engaged for performing any function of
the Authority under this Act, have in place appropriate
technical and organisational security measures for the
information; and

(c) ensure that the agreements or arrangements entered into
with such agencies, consultants, advisors or other persons,
impose obligations equivalent to those imposed on the
Authority under this Act, and require such agencies,
consultants, advisors and other persons to act only on
instructions from the Authority.”

Except where it has otherwise been provided in the Aadhaar Act, a burden is

placed (under
Section 28(5)
) upon UIDAI, its officers, other employees

(whether during service or thereafter), and any agency that maintains the

CIDR not to reveal any information stored or the authentication record to

anyone. An Aadhaar number holder, however, may request UIDAI to provide

access to identity information excluding core biometric information in the

manner as may be specified by regulations (proviso to
Section 28(5)
).

Section 29
puts restrictions on sharing of information, collected or created

under the Act. Sub-section (1) of
Section 29
provides that:

“(1) No core biometric information, collected or created under
this Act, shall be—

(a) shared with anyone for any reason whatsoever; or

(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.”
PART D

Sub-section (2) contemplates that the identity information, other than core

biometric information, collected or created under the Act may be shared only in

accordance with the provisions of the Act and in the manner as may be

specified by regulations.

A burden is placed, under
Section 29(3)
, upon a requesting entity to ensure

that any identity information available with it, is neither used for any purpose,

other than that specified to the individual at the time of submitting identity

information for authentication; nor disclosed further, except with the prior

consent of the individual to whom such information relates.

Sub-section (4) prohibits publishing, display or posting publicly of any Aadhaar

number or core biometric information collected or created under the Act in

respect of an Aadhaar number holder, except for such purposes as may be

specified by the regulations.
Section 30
contemplates that the biometric

information collected and stored in an electronic form is to be deemed

“sensitive personal data or information”. The provision specifically relates to

biometric information. The provision dilutes the protection that should be given

to demographic information. Further, a statutory duty has been placed upon

UIDAI to maintain authentication records in the manner and for a time period

prescribed by regulations.65 The issue of maintenance of authentication

records by UIDAI has been contentious and is dealt in a subsequent section

titled “Proportionality”. A statutory right is provided to every Aadhaar number

65 Section 32(1), Aadhaar Act
PART D

holder to obtain his authentication record in the manner specified by

regulations.66
Section 32(3)
prohibits UIDAI (either by itself or through any

entity under its control) to collect, keep or maintain any information about the

purpose of authentication.

51 The Aadhaar Act allows disclosure of individual information in limited

circumstances. The manner and purpose for which information of individuals,

including identity information or authentication records, can be disclosed has

been provided under
Section 33
of the Act.
Section 33
states:

“(1) Nothing contained in sub-section (2) or sub-section (5) of

section 28
or sub-section (2) of
section 29
shall apply in
respect of any disclosure of information, including identity
information or authentication records, made pursuant to an
order of a court not inferior to that of a District Judge:

Provided that no order by the court under this sub-section
shall be made without giving an opportunity of hearing to the
Authority.

(2) Nothing contained in sub-section (2) or sub-section (5) of

section 28
and clause (b) of sub-section (1), sub-section (2)
or sub-section (3) of
section 29
shall apply in respect of any
disclosure of information, including identity information or
authentication records, made in the interest of national
security in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government of India specially
authorised in this behalf by an order of the Central
Government:

Provided that every direction issued under this sub-section,
shall be reviewed by an Oversight Committee consisting of
the Cabinet Secretary and the Secretaries to the Government
of India in the Department of Legal Affairs and the
Department of Electronics and Information Technology,
before it takes effect:

Provided further that any direction issued under this sub-
section shall be valid for a period of three months from the

66 Section 32(2), Aadhaar Act
PART D

date of its issue, which may be extended for a further period
of three months after the review by the Oversight Committee.”

The Aadhaar Act provides two categories: a “court order” and “in the interest of

national security”, where the personal information of an individual can be

disclosed.

Under
Section 31
, in case any demographic information or biometric

information of an Aadhaar number holder is found to be incorrect, is lost or

changes subsequently, the Aadhaar number holder is required to request

UIDAI to make an alteration in his or her record in the CIDR in the manner

specified by regulations. On receipt of a request for alteration of demographic

or biometric information, UIDAI is vested with the power, subject to its

satisfaction, to make alterations as required in the record relating to the

Aadhaar number holder and to intimate the alteration to the holder. Sub-

section (4) of
Section 31
prohibits alteration of any identity information in the

CIDR except in the manner provided in the Act or regulations made in this

behalf.

52 Chapter VII provides offences and penalties. Under
Section 34
, a

penalty has been provided for impersonation at the time of enrolment.
Section
creates a penalty for impersonation of the Aadhaar number holder by

changing demographic or biometric information.
Section 37
provides a penalty
PART D

for disclosing identity information (which was collected in the course of

enrolment or authentication).

Under
Section 38
, a penalty for unauthorised access to the CIDR has been

provided.
Section 38
provides thus:

“Whoever, not being authorised by the Authority,
intentionally,—

(a) accesses or secures access to the Central Identities Data
Repository;

(b) downloads, copies or extracts any data from the Central
Identities Data Repository or stored in any removable storage
medium;

(c) introduces or causes to be introduced any virus or other
computer contaminant in the Central Identities Data
Repository;

(d) damages or causes to be damaged the data in the Central
Identities Data Repository;

(e) disrupts or causes disruption of the access to the Central
Identities Data Repository;

(f) denies or causes a denial of access to any person who is
authorised to access the Central Identities Data Repository;

(g) reveals any information in contravention of sub-section (5)
of
section 28
, or shares, uses or displays information in
contravention of
section 29
or assists any person in any of the
aforementioned acts;

(h) destroys, deletes or alters any information stored in any
removable storage media or in the Central Identities Data
Repository or diminishes its value or utility or affects it
injuriously by any means; or

(i) steals, conceals, destroys or alters or causes any person
to steal, conceal, destroy or alter any computer source code
used by the Authority with an intention to cause damage,

shall be punishable with imprisonment for a term which may
extend to three years and shall also be liable to a fine which
shall not be less than ten lakh rupees.”
PART D

Section 39
imposes a penalty for tampering with data in the CIDR.
Sections 40

and
impose penalties on requesting and enrolment agencies in case they

act in contravention of the obligations imposed upon them under the Act.

Section 42
provides for a general penalty for an offence under the Act or the

rules or regulations made thereunder, for which no specific penalty is provided

under the Act. Under
Section 43
, when an offence has been committed by a

company, every person who at the time the offence was committed was in

charge of, and was responsible to the company for the conduct of the business

of the company, as well as the company, shall be deemed to be guilty of the

offence and shall be liable to be proceeded against and punished accordingly.

Section 44
indicates that the provisions of the Act would apply to any offence

or contravention committed outside India by any person, irrespective of

nationality. The power to investigate offences under the Act has been placed,

under
Section 45
, on a police officer not below the rank of Inspector of Police.

Section 47(1)
of the Act puts a bar on the courts from taking cognizance of any

offence punishable under the Act, except when a complaint is made by UIDAI

or any officer or person authorised by it. The provision indicates that the scope

of cognizance is limited. It does not allow an individual who finds that there is

any violation under the Act, to initiate criminal proceedings. The scope of

grievance redressal under the Act is restrictive and works only on the action of

UIDAI or a person authorised by it. UIDAI has set up a grievance redressal

mechanism as contemplated by Section 23(2)(s) of the Aadhaar Act. There is
PART D

no grievance redressal mechanism if any breach or offence is committed by

UIDAI itself. The right of an individual to seek remedy under the Act if his/her

rights are violated will be discussed subsequently. Under sub-Section (2), no

court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial

Magistrate can try any offence punishable under the Act.

Section 48
empowers the Central Government to supersede UIDAI, in certain

situations. Under
Section 50
, UIDAI, in exercise of its powers or performance

of its functions under the Act, shall be bound by the written directions on

questions of policy of the Central Government.
Section 51
vests power in

UIDAI to delegate to any member, officer or any other person, its powers and

functions under the Act (except the power under
section 54
) as it may deem

necessary.
Section 51
grants a wide discretion to the UIDAI to delegate any of

its powers and functions.

Section 55
requires every rule and regulation made under the Aadhaar Act to

be laid down before each House of Parliament. The Section states:

“55. Laying of rules and regulations before Parliament.-

Every rule and every regulation made under this Act shall be
laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the rule or regulation, or both the Houses
agree that the rule or regulation should not be made, the rule
or regulation shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that
PART E

any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule or
regulation.”

UIDAI needs to place the regulations framed by it before Parliament.

53 The architecture of Aadhaar is integral to the exercise of analyzing the

reasonableness of the entire project. Whether the architecture addresses the

concerns raised by the petitioners is an essential component of this exercise.

The architecture of Aadhaar must pass the constitutional requirements of

reasonableness and proportionality. This aspect will be dealt under the

heading of “proportionality” in a subsequent part of this judgment.

E Passage of Aadhaar Act as a Money Bill

54 The petitioners challenge the constitutionality of the Aadhaar Act,

contending that it could not have been passed as a Money Bill. According to

the submission, the Aadhaar Act did not qualify as a Money Bill under
Article
of the Constitution, and it legislates on matters which fall outside that

provision. The Attorney General for India submitted that the Constitution

accords finality to the decision of the Speaker as to whether a Bill is a Money

Bill and hence the question whether the Aadhaar Act fulfils the requirements

of being categorized as Money Bill is not open to judicial review. The Attorney

General also urged that the Aadhaar Act does fall under
Article 110.

Article 110
provides thus:
PART E

“(1) For the purposes of this Chapter, a Bill shall be deemed
to be a Money Bill if it contains only provisions dealing with all
or any of the following matters, namely:—

(a) the imposition, abolition, remission, alteration or regulation
of any tax;

(b) the regulation of the borrowing of money or the giving of
any guarantee by the Government of India, or the amendment
of the law with respect to any financial obligations undertaken
or to be undertaken by the Government of India;

(c) the custody of the Consolidated Fund or the Contingency
Fund of India, the payment of moneys into or the withdrawal
of moneys from any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund
of India;

(e) the declaring of any expenditure to be expenditure
charged on the Consolidated Fund of India or the increasing
of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund
of India or the public account of India or the custody or issue
of such money or the audit of the accounts of the Union or of
a State; or

(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason
only that it provides for the imposition of fines or other
pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it
provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local
purposes.

(3) If any question arises whether a Bill is a Money Bill or not,
the decision of the Speaker of the House of the People
thereon shall be final.

(4) There shall be endorsed on every Money Bill when it is
transmitted to the Council of States under
article 109
, and
when it is presented to the President for assent under
article
, the certificate of the Speaker of the House of the People
signed by him that it is a Money Bill.”

55 The key questions before this Court are:

(i) Whether under
Article 110(3)
, the decision of the Speaker of the Lok

Sabha, that a Bill is a Money Bill, is immune from judicial review;
PART E

(ii) If the answer to (i) is in the negative, whether the Aadhaar Act is a Money

Bill under Article 110(1) of the Constitution; and

(iii) If the Bill to enact the Aadhaar Act was not a Money Bill, whether a

declaration of unconstitutionality will result from its legislative passage as

a Money Bill in the Lok Sabha.

E.I Judicial Review of the Speaker’s Decision
Article 109
provides for a special procedure in respect of Money Bills. It

provides that a Money Bill shall not be introduced in the Council of States, the

Rajya Sabha. After a Money Bill is introduced in the Lok Sabha and passed by

it, the Bill has to be transmitted to the Rajya Sabha for its recommendations.

Article 110(4)
provides that when a ‘Money Bill’ is transmitted from the Lower

House to the Upper House, it must be endorsed with a certificate by the

Speaker of the Lower House that it is a Money Bill. From the date of the

receipt of the Money Bill, the Rajya Sabha is bound to return the Bill to the Lok

Sabha, within a period of fourteen days, with its recommendations. The Lok

Sabha has the discretion to “either accept or reject all or any of the

recommendations” made by the Rajya Sabha.67 If the Lok Sabha accepts any

of the recommendations of the Rajya Sabha, the Money Bill is deemed to

have been passed by both Houses of the Parliament “with the amendments

recommended” by the Rajya Sabha and accepted by the Lok Sabha.68
Article 109(2)
, The Constitution of India
Article 109(3)
, The Constitution of India
PART E

However, when the Lok Sabha “does not accept any of the recommendations”

of the Rajya Sabha, the Money Bill is said to have been passed by both

Houses in the form in which it was originally passed by the Lok Sabha.69 If a

Money Bill after being passed by the Lok Sabha and transmitted to the Rajya

Sabha for its recommendations is not returned to the Lok Sabha within a

period of fourteen days, it is then deemed to have been passed by both the

Houses of the Parliament in the form in which it was originally passed by the

Lok Sabha.70 When a Money Bill has been passed by the Houses of the

Parliament,
Article 111
requires it to be presented to the President along with

the Lok Sabha Speaker’s certificate for assent71.
Article 117(1)
also provides

that a Bill “making provision for any of the matters specified in sub-clauses (a)

to (f) of clause (1) of article 110” shall also not be introduced in the Rajya

Sabha.

57 The Constitution contains corresponding provisions for Money Bills

introduced in and passed by a state legislative assembly.
Article 198
provides

a special procedure for Money Bills in the state legislative assembly.
Article

199(3)
provides for the finality of the decision of the Speaker of the Legislative

Assembly. Under
Article 200
, when a Money Bill has been passed by the

State Legislature, it is to be presented to the Governor, along with the

Speaker’s certificate, for assent.72
Article 109(4)
, The Constitution of India
Article 109(5)
, The Constitution of India
Article 110(4)
, The Constitution of India
Article 199(4)
, The Constitution of India
PART E

Article 107
contains provisions for the introduction and passing of Bills in

general and provides thus:

“(1) Subject to the provisions of
articles 109
and
with
respect to Money Bills and other financial Bills, a Bill may
originate in either House of Parliament.
(2) Subject to the provisions of
articles 108
and
, a Bill
shall not be deemed to have been passed by the Houses
of Parliament unless it has been agreed to by both
Houses, either without amendment or with such
amendments only as are agreed to by both Houses.
(3) A Bill pending in Parliament shall not lapse by reason of
the prorogation of the Houses.

(4) A Bill pending in the Council of States which has not been
passed by the House of the People shall not lapse on a
dissolution of the House of the People.

(5) A Bill which is pending in the House of the People, or
which having been passed by the House of the People is
pending in the Council of States, shall, subject to the
provisions of
article 108
, lapse on a dissolution of the House
of the People.”

58 Ordinary bills can be passed only when they are agreed to by both

Houses. Amendments suggested by one House have to be agreed upon by

both the Houses for the bill to be passed. Both Houses of Parliament have a

vital role assigned by the Constitution in the passage of ordinary bills.

Deviating from the important role which it assigns to the Rajya Sabha in the

passage of legislation, the Constitution carves out a limited role for the Rajya

Sabha in the passage of Money Bills.

59 The Constitution confers special powers on the Speaker of the Lok

Sabha in the passage of a Money Bill. Ordinary bills (other than Money Bills)

can originate in either House of Parliament. They can be scrutinised, debated

in and amended in both the Houses of Parliament during the course of
PART E

passage. A Bill is not regarded as being passed by Parliament until both the

Houses agree to its passage without amendments or with the amendments as

proposed. A constitutional discretion is conferred on the Speaker of the Lok

Sabha to decide whether a Bill is a Money Bill. When the Speaker of the Lok

Sabha declares a Bill to be a Money Bill, the Rajya Sabha is left only with the

option to make recommendations to the Bill within the deadline of fourteen

days. Being only recommendations, they do not bind the Lok Sabha. They

may either be accepted or rejected by the Lok Sabha.

60 The Rajya Sabha is a constitutional body in a bicameral legislature. The

makers of the Constitution adopted bicameralism from Britain. The origin of

the limited role that the Upper House has in the passing of a Money Bill can

be traced to the British Parliament Act, 1911, which will be discussed in a

subsequent part of this analysis. The draftspersons of the Constitution were

conscious of the impact of a misuse of institutional power. They provided for a

detailed blue print of the architecture of constitutional governance. It is

necessary to understand our constitutional history in order to comprehend the

scope of the finality attributed to the Speaker’s decision on whether or not a

Bill is a Money Bill.

61 The origins of the procedure of passing Money Bills in the United

Kingdom are older than the Parliament Act of 1911. The authoritative
PART E

treatise73, by Thomas Erskine May, on the law, privileges, proceedings and

usage of Parliament in Britain dwells on the history of the evolution of the

relationship between the House of Commons and the House of Lords with

regard to their powers of taxation and in relation to national revenue and

public expenditure.74

A grant imposed by the House of Commons would become law in effect, only

after the assent of the House of Lords and of the Queen.75 While the House of

Commons enjoyed the legal right to originate grants for nearly 300 years, the

House of Lords was originally not precluded from amending a Bill. But in

167176 and 167877 respectively, the Commons passed two resolutions to

curtail the powers of the House of Lords so that only the Commons had the

sole right to direct or limit the scope of a Bill regarding taxation and

government expenditure. The House of Lords was excluded from altering any

such Bill.

The exclusion of the Lords was so strictly followed that the Commons even

denied to the former, the power of authorising the taking of fees, imposing

73 Thomas Erskine May, A treatise on the law, privileges, proceedings and usage of Parliament, Ninth Edition

(1883)
Ibid, at pages 637-638. It notes: “At length, when the Commons had increased in political influence, and the
subsidies voted by them had become the principal source of national revenue, they gradually assumed their
present position in regard to taxation and supply, and included the Lords as well as themselves in their grants.
So far back as 1407, it was stated by King Henry IV, in the ordinance called “The Indemnity of the Lords and
Commons”, that grants were “granted by the Commons, and assented to by the Lords”.”
75 Ibid, at page 638
76 Ibid, at page 641. The Resolution stated: “That in all aids given to the king by the Commons, the rate or tax

ought not to be altered”.

77 Ibid. The Resolution stated: “That all aids and supplies, and aids to his Majesty in Parliament, are the sole gift

of the Commons ; and all bills for the granting of any such aids and supplies ought to begin with the Commons
: and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends,
purposes, considerations, conditions, limitations, and qualifications of such grants ; which ought not to be
changed or altered by the House of Lords.”
PART E

pecuniary penalties or of varying the mode of suing for them, or of applying

them when recovered, though such provisions were necessary to give effect

to the general enactments of a Bill.78 Since this strict enforcement was found

to be “attended with unnecessary inconvenience”, it led to the adopting of a

Standing Order in 1849 which accommodated space to the House of Lords for

suggesting amendments on legislative issues.79 However, the constitutional

skirmishes continued. They eventually led to the passage of the Parliament

Act of 1911, which essentially deprived the House of Lords of the right to

reject Money Bills.

62 The Parliament Act 1911 was explicitly aimed at “regulating the

relations between the two Houses of Parliament”80. The Preamble of the Act

indicates that it was enacted for “restricting the existing powers of the House

of Lords”81.
Section 1(1)
provides for the power of the House of Lords on

Money Bills:

“If a Money Bill, having been passed by the House of
Commons, and sent up to the House of Lords at least one
month before the end of the session, is not passed by the
House of Lords without amendment within one month after it
is so sent up to that House, the Bill shall, unless the House of
Commons direct to the contrary, be present to His Majesty
and become an Act of Parliament on the Royal Assent being
signified, notwithstanding that the House of Lords have not
consented to the Bill.”

“Money Bill” was defined statutorily for the first time.
Section 1(2)
provided:

78 Ibid, at pages 642-643
79 Ibid, pages 646-647
80 Preamble of the Parliament Act 1911
81 Ibid
PART E

“A Money Bill means a Public Bill which in the opinion of the
Speaker of the House of Commons contains only provisions
dealing with all or any of the following subjects, namely, the
imposition, repeal, remission, alteration, or regulation of
taxation; the imposition for the payment of debt or other
financial purposes of charges on the Consolidated Fund, [the
National Loans Fund] or on money provided by Parliament, or
the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising or guarantee of any loan or the
repayment thereof; or subordinate matters incidental to those
subjects or any of them. In this subsection the expressions
“taxation”, “public money”, and “loan” respectively do not
include any taxation, money, or loan raised by local
authorities or bodies for local purposes.”

The use of the expression “means” in the definition of a Money Bill indicates it

was exhaustively defined. A Bill would be a Money Bill, if the Speaker of the

House of Commons opined that it contains “only” certain specific provisions.

Under
Section 1(3)
, when a Money Bill is sent up to the House of Lords and to

Her Majesty for assent, it should be endorsed by a certificate of the Speaker

of the House of Commons that it is a Money Bill. This sub-section also

provides that before giving his certificate, the Speaker may consult “two

members to be appointed from the Chairman’s Panel at the beginning of each

Session by the Committee of Selection”. Therefore, the Speaker has to certify

any bill which in his or her opinion falls within the definition of a Money Bill.

Any bill containing provisions outside the definition would not be certified as a

Money Bill. The Speaker does not certify a Bill until it has reached the form in

which it will leave the House of Commons, that is, at the end of its Commons
PART E

stage. The Speaker can only decide whether or not to certify a Bill once it has

passed the House.82

Section 3
of the 1911 Act provides finality to the certificate issued by the

Speaker and renders it immune from judicial review. According to it:

“Any certificate of the Speaker of the House of Commons
given under this Act shall be conclusive for all purposes,
and shall not be questioned in any court of law.”
(Emphasis supplied)

The Act
provides finality to the decision of the Speaker of the House of

Commons. By using the phrase “shall not be questioned in any court of law”,

the Act grants immunity to the Speaker’s decision from judicial review.

The statutory concept of a ‘Money Bill’ and the Speaker’s certification of a Bill

as a ‘Money Bill’ introduced by the Parliament Act, 1911 ultimately found its

way into the Constitution of India, but with significant modifications.

63 In India, the categorization of Money Bills can be said to have begun

from the Commonwealth of India Bill 1925, which was drafted by a National

Convention comprised of 250 members, with Tej Bahadur Sapru as its

Chairman.
Article 36
of the Commonwealth Bill provided:

“36. (a) Any Bill which appropriates revenue or moneys for
the ordinary annual services of the Government shall deal
only with such appropriation.

82 House of Lords, Select Committee on the Constitution, Money Bills and Commons Financial Privilege (2011),
available at https://publications.parliament.uk/pa/ld201011/ldselect/ldconst/97/97.pdf
PART E

(b) Bills imposing taxation· shall deal only with the imposition
of taxes, and any provision therein dealing with any other
matter shall be of no effect.

(c) Bills for the appropriation of revenues or moneys or
imposing taxation shall be introduced only by a member of
the Cabinet, and can only originate in the Legislative
Assembly.”

The Bill neither provided a definition of a Money Bill nor did it discuss the role

of the Speaker of the Assembly of elected representatives.

In its Madras session of December 1927, the Indian National Congress, as a

response to the setting up of the Simon Commission (which did not have any

Indian members) decided to set up an All Parties’ Conference to draft a

Constitution for India. With Motilal Nehru as the Chairman of the Committee

constituted by the All Parties’ Conference, a Report was prepared.
Article 17

of the Nehru Report provided a definition of a Money Bill:

“17. A money bill means a bill which contains only provisions
dealing with all or any of the following subjects, namely the
imposition, repeal, remission, alteration or regulation of
taxation; the imposition, for the payment of debt or other
financial purposes, of charges on public revenues or monies,
or the variation or repeal of any such charges; the supply,
appropriation, receipt, custody, issue or audit of accounts of
public money; the raising of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or
any of them. In this definition the expression “taxation”,
“public money” and “loan” respectively do not include any
taxation, money or loan raised by local authorities or bodies
for local purposes.”

The definition of a Money Bill in the Nehru Report, was drawn from the

Parliament Act, 1911 in Britain.
Article 18
of the Report provided that the

“question whether a bill is or is not a money bill will be decided by the
PART E

president of the House of Representatives”. The House of Representatives

(the Lower House) was provided the final authority to either accept or reject

the recommendations made by the Senate (the Upper House).
Article 19
of

the Report provided thus:

“A money bill passed by the House of Representatives shall
be sent to the Senate for its recommendations and it shall be
returned not later than… days therefrom to the House of
Representatives, which may pass it, accepting or rejecting all
or any of the recommendations of the Senate; and the bill so
passed shall be deemed to have been passed by both
chambers.”

While the Constituent Assembly of India was in session, the Socialist Party of

India came up with a “Draft Constitution of the Republic of India”, based on its

ideologies.
Article 147
of its Draft Constitution provided:

“147. (1) A Bill making provision-

(a) for imposing, abolishing, remitting, altering or regulating
any tax ; or

(b) for regulating the borrowing of money, or giving any
guarantee by the Government, or for amending the law with
respect to any financial obligations undertaken or to be
undertaken by the Government; or

(c) for declaring any expenditure to be expenditure charged
on the public revenues, or for increasing the amount of any
such expenditure
shall be deemed as a money Bill and shall not be introduced
or moved except on the recommendation of the Government.
(2) A Bill or amendment shall not be deemed to make
provision for any of the purposes aforesaid by reason only
that it provides for the Imposition of fines or other pecuniary
penalties, or for the demand and payment of fees for licenses
or fees for services rendered, or by reason that it provides for
the imposition, abolition, remission, alteration, or regulation of
tax by any local authority or body for local purposes.
(3) In case of dispute whether a Bill is a money Bill or not, the
decision of the Speaker, or in his absence of the Deputy
Speaker, shall be final.”
PART E

The Draft Constitution of the Socialist Party conferred a discretion on the

Speaker of the Lower House, and in his absence, on the Deputy Speaker, to

decide whether a Bill is a Money Bill.

64 There was another model present before the makers of the Indian

Constitution. British India was governed by the provisions of the
Government

of India Act, 1935
, which provided for two Houses of Parliament − the Council

of States (Upper House) and Federal Assembly (Lower House).
Section 37
of

the Government of India Act 1935 made special provisions for financial bills:

“37.-(1) A Bill or amendment making provision- (a) for
imposing or increasing any tax; or (b) for regulating the
borrowing of money or the giving of any guarantee by the
Federal Government, or for amending the law with respect to
any financial obligations undertaken or to be undertaken by
the Federal Government ; or (c) for declaring any expenditure
to be expenditure charged on the revenues of the Federation,
or for increasing the amount of any such expenditure, shall
not be introduced or moved except on the recommendation of
the Governor-General, and a Bill making such provision shall
not be introduced in the Council of State.”

Under the 1935 Act, there was no provision for a Speaker’s certificate

regarding a Financial Bill.
Section 38(1)
authorized each House to make rules

regulating its procedure and for the conduct of its business, subject to the

provisions of the Act.

A Financial Bill could be introduced only “on the recommendation of the

Governor-General”.
Section 41
provided a general immunity from judicial

review on the “ground of any alleged irregularity of procedure”:
PART E

“41(1). The validity of any proceedings in the Federal
Legislature shall not be called in question on the ground of
any alleged irregularity of procedure.

(2) No officer or other member of the Legislature in whom
powers are vested by or under this Act for regulating
procedure or the conduct of business, or for maintaining
order, in the Legislature shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers.”

The Constituent Assembly evidently had these legislative precedents relating

to Money Bills which it would have considered while formulating its drafts.

65 While the proceedings of the Constituent Assembly were in motion, Sir

B N Rau, as its constitutional advisor, prepared a memorandum of the Draft

Constitution for the Union Constitution Committee. It envisaged a Parliament

of the Union consisting of the President and two Houses—the Senate and the

House of Representatives.83 One of the proposals discussed in the meetings

of the Union Constitution Committee was that “Money Bills would originate in

the House of the People and the power of the other House would be limited to

making suggestions for amendment, which the House of the People could

accept or reject”.84 B Shiva Rao has recorded what transpired during the

course of the proceedings of the Constituent Assembly:

“The Draft also included provisions regarding legislative
procedure, procedure in financial matters and general
procedure for the conduct of business. No Bill could be
submitted for the President’s assent unless it had been
passed in identical form by both Houses. Except in the case
of Money Bills, both Houses enjoyed equal powers; and
difference between the two Houses were to be settled by a
majority vote in a joint sitting of both Houses convened by the
President… Money Bills were defined in the Draft as

83 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at
page 420
84 Ibid
PART E

comprising Bills proposing the imposition or increase of any
tax, regulating the borrowing of money by the Government of
India or the giving of financial guarantees, or declaring any
item of expenditure as ‘‘charged” on the revenues, i.e. placing
it outside the vote of the House of the People. The general
principle approved by the Constituent Assembly was that
financial control over the executive would' be - exercised by
the House of the People. Accordingly the Draft provided that
Money Bills could originate only in that House. The powers of
the Council of States in the case of Money Bills were
restricted to making suggestions for amendment. If these
suggestions were, not accepted by the House of the People,
or if the Council of States did not return a Bill within thirty
days with its suggestions for amendment, the Bill would be
‘deemed to have been' passed by both Houses in the form in
which it was passed' by the House of the People” and
submitted to the President for his assent’.”85

66 The draft prepared by the Constitutional Advisor provided a definition of

a Money Bill, which was inspired by
Section 37
of the Government of India

Act 1935, Section 53 of the Commonwealth of Australia Constitution Act

190086 and
Article 22
of the Constitution of Ireland 1937.87
Article 75
of this

draft of the Constitution provided that “if any question arises whether a Bill is a

‘money bill’ or not, the decision of the Speaker of the House of the People

thereon shall be final.”88 Neither
Section 37
of the Government of India Act

1935 nor Section 53 of the Commonwealth of Australia Constitution Act 1900

85 Ibid, at pages 427-428
86 The said provision provides: “Powers of the Houses in respect of legislation.
Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a
proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its
containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand
or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may
not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the
ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase
any proposed charge or burden on the people. The Senate may at any stage return to the House of
Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or
amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any
of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate
shall have equal power with the House of Representatives in respect of all proposed laws.”
87 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of Public

Administration (2012), at page 32, as quoted in Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial
Review and Money Bills, NUJS Law Review (2017)
88 Ibid
PART E

has a similar provision which accords legal finality to the decision of the

Speaker. The draft provision was similar to
Article 22
of the Constitution of

Ireland 1937, which provides:

“1. The Chairman of Dáil Éireann89 shall certify any Bill
which, in his opinion, is a Money Bill to be a Money Bill,
and his certificate shall, subject to the subsequent
provisions of this section, be final and conclusive.

2. Seanad Éireann90, by a resolution, passed at a sitting at
which not less than thirty members are present, may request
the President to refer the question whether the Bill is or is not
a Money Bill to a Committee of Privileges.

3. If the President after consultation with the Council of State
decides to accede to the request he shall appoint a
Committee of Privileges consisting of an equal number of
members of Dáil Éireann and of Seanad Éireann and a
Chairman who shall be a Judge of the Supreme Court: these
appointments shall be made after consultation with the
Council of State. In the case of an equality of votes but not
otherwise the Chairman shall be entitled to vote.

4. The President shall refer the question to the Committee of
Privileges so appointed and the Committee shall report its
decision thereon to the President within twenty-one days after
the day on which the Bill was sent to Seanad Éireann.

5. The decision of the Committee shall be final and
conclusive.

6. If the President after consultation with the Council of State
decides not to accede to the request of Seanad Éireann, or if
the Committee of Privileges fails to report within the time
hereinbefore specified the certificate of the Chairman of Dáil
Éireann shall stand confirmed.” (Emphasis supplied)

67 The draft prepared by the Advisor to the Constituent Assembly did not

adopt the above provision in its entirety. It adopted the part on the finality of

the certification of the Speaker on whether a Bill is a Money Bill. The Irish

model of dispute resolution, which provided for a mechanism to review the

Speaker’s certification, was not adopted.

89 Lower House in Ireland
90 Upper House in Ireland
PART E

Subsequently, in its report submitted to the President of the Constituent

Assembly on 5 December 1947, the Expert Committee on Financial

Provisions suggested an amendment to the draft provision, to the effect that:

“When a Money Bill is sent from the Lower House to the
Upper, a certificate of the Speaker of the Lower House saying
that it is a Money Bill should be attached to, or endorsed on,
the bill and a provision to that effect should be made in the
Constitution on the lines of the corresponding provision in the
Parliament Act, 1911. This will prevent controversies
about the matter outside the Lower House.”91 (Emphasis
supplied)

Certification of any Bill by the Speaker of the Lower House as a Money Bill,

was envisaged for procedural simplicity to avoid causing confusion in the

Upper House of Parliament.

68 The final provision which has assumed the form of
Article 110
of the

Constitution, does not contain the exact language used in the Act of 1911.

The 1911 Act of the British Parliament consciously excluded judicial review of

the certificate of the Speaker of the House of Commons. The intention of the

British Parliament is clear from the specific language used in
Section 3
of the

Act.
Section 3
accords finality to the decision of the Speaker by providing that

any certificate of the Speaker of the House of Commons “shall be conclusive

for all purposes, and shall not be questioned in any court of law”. The

certification of the Speaker is both conclusive and immune from judicial

review. The framers of the Indian Constitution did not adopt this language.

91 B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian Institution of Public
Administration, at page 281
PART E

Rather, they chose to adopt the phrase “shall be final”. The phrase used in the

Act of 1911 expressly excluded courts from exercising their power of judicial

review over the decision of the Speaker of the House of Commons. This

language was used in the 1911 Act to put an end to the constitutional

skirmishes experienced by the House of Lords and the House of Commons in

Britain for more than five hundred years, leading to the enactment of the 1911

Act.92 The deviation from incorporating the language, used in the 1911 Act,

into the Indian Constitution is reflective of the intention of our Constitution

makers that they did not want to confer the same status on the power

assigned to the Speaker of the Lok Sabha, as is provided to the Speaker of

the House of Commons. Had their intention been otherwise, they would have

used the same language as that provided under the 1911 Act. Finality would

operate as between the Houses of Parliament. It did not exclude judicial

review by a constitutional Court.

69 The British legal system adopts the principle of parliamentary

sovereignty. That is not so in India. Ours is a system founded on the

supremacy of the Constitution. Judicial review is an essential component of

constitutional supremacy. A Constitution Bench of this Court in
Kalpana

Mehta v Union of India93
has, while noticing this distinction, held:

“…The fundamental difference between the two systems lies
in the fact that parliamentary sovereignty in the Westminster
form of government in the UK has given way, in the Indian
Constitution, to constitutional supremacy. Constitutional

92 Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, NUJS Law Review (2017)
93 (2018) 7 SCC 1
PART E

supremacy mandates that every institution of governance is
subject to the norms embodied in the constitutional text. The
Constitution does not allow for the existence of absolute
power in the institutions which it creates. Judicial review as a
part of the basic features of the Constitution is intended to
ensure that every institution acts within its bounds and
limits.”94

70 The purpose of judicial review is to ensure that constitutional principles

prevail in interpretation and governance. Institutions created by the

Constitution are subject to its norms. No constitutional institution wields

absolute power. No immunity has been attached to the certificate of the

Speaker of the Lok Sabha from judicial review, for this reason. The

Constitution makers have envisaged a role for the judiciary as the expounder

of the Constitution. The provisions relating to the judiciary, particularly those

regarding the power of judicial review, were framed, as Granville Austin

observed, with “idealism”95. Courts of the country are expected to function as

guardians of the Constitution and its values. Constitutional courts have been

entrusted with the duty to scrutinize the exercise of power by public

functionaries under the Constitution. No individual holding an institutional

office created by the Constitution can act contrary to constitutional

parameters. Judicial review protects the principles and the spirit of the

Constitution. Judicial review is intended as a check against arbitrary conduct

of individuals holding constitutional posts. It holds public functionaries

accountable to constitutional duties. If our Constitution has to survive the

vicissitudes of political aggrandisement and to face up to the prevailing

94 Ibid, at para 227
95 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 205
PART E

cynicism about all constitutional institutions, notions of power and authority

must give way to duties and compliance with the rule of law. Constitutional

institutions cannot be seen as focal points for the accumulation of power and

privilege. They are held in trust by all those who occupy them for the moment.

The impermanence of power is a sombre reflection for those who occupy

constitutional offices. The Constitution does not contemplate a debasement of

the institutions which it creates. The office of the Speaker of the House of

People, can be no exception. The decision of the Speaker of the Lok Sabha in

certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its

compliance with constitutional principles. Nor can such a decision of the

Speaker take leave of constitutional morality.

71 Our Constitution does not provide absolute power to any institution. It

sets the limits for each institution. Our constitutional scheme envisages a

system of checks and balances. The power of the Speaker of the Lok Sabha,

to decide whether a Bill is a Money Bill, cannot be untrammelled. The

contention that the decision of Speaker is immune from judicial review and

cannot be questioned, is contrary to the entire scheme of the Constitution,

which is premised on transparency, non-arbitrariness and fairness. The

phrase “shall be final” used in
Article 110(3)
has been adopted, as mentioned

earlier, from
Article 22
of the Irish Constitution. The provisions of
Article 22
of

the Irish Constitution provide a mechanism for review of the certificate issued

by the Speaker. Recourse is provided under the Irish Constitution by which
PART E

the members of the Upper House of the Irish Parliament can request the

President of Ireland to refer the question of whether a Bill is a Money Bill, to a

Committee of Privileges. If the President refers the question to this

Committee, the decision of the Committee stands “final and conclusive”. The

members of the Constituent Assembly did not adopt this mechanism. Absence

of this mechanism does not mean that the decision of the Speaker of the Lok

Sabha cannot be subject to checks and balances, of which judicial review is

an indispensable facet. The Speaker has to act within the domain, which the

Constitution accords to the office of the Speaker. The power conferred on the

Speaker of the Lok Sabha cannot be exercised arbitrarily, for it could damage

the scheme of the Constitution. Judicial review is the ultimate remedy to

ensure that the Speaker does not act beyond constitutional entrustment.

72 The scope of the phrase “shall be final” can also be understood by

looking at the proceedings of the Constituent Assembly. The constitutional

foundation of
Article 110(4)
is based upon a suggestion of the Expert

Committee on Financial Provisions that when a Money Bill is transmitted from

the Lower House to the Upper House, it should be endorsed by the Speaker’s

certificate, so as to prevent any controversy “about the matter outside the

Lower House”. Therefore, the finality provided to the decision of the Speaker

as to whether a Bill is a Money Bill or not, is aimed at avoiding any

controversy on the issue in the Rajya Sabha and before the President. Had it

been intended to prevent the court from adjudicating upon the validity of the
PART E

decision of the Speaker, the language of the Article would have made it

explicit. Where a constitutional provision evinces a specific intent to exclude

judicial review, clear words to that effect are used.
Articles 243O(a) 96
,

243ZG(a)97
and
329(a)
specifically use the phrase − “shall not be called in

question in any court”. For instance,
Article 329(a)
provides thus:

“Notwithstanding anything in this Constitution —

(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
article
or
article 328
, shall not be called in question in any
court.” (Emphasis supplied)

73 In
N P Ponnuswami v Returning Officer, Namakkal Constituency,

Namakkal, Salem District98
, a six judge Bench of this Court, while construing

the provisions of
Article 329
, compared it to the preceding Articles, and held

thus:

“5…A notable difference in the language used in
articles 327

and
on the one hand, and
article 329
on the other, is that
while the first two articles begin with the words “subject to the
provisions of this Constitution”, the last article begins with the
words “notwithstanding anything in this Constitution”. It was
conceded at the Bar that the effect of this difference in
language is that whereas any law made by Parliament under

article 327
, or by the State Legislature under
article 328
,
cannot exclude the jurisdiction of the High Court under
article
of the Constitution, that jurisdiction is excluded in regard
to matters provided for in article 329.”99
Article 243O(a)
, which is a part of the chapter on Panchayats, provides: “Notwithstanding anything in this
Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under
article 243K
, shall not be called in question in any
court.”
Article 243ZG(a)
, which is a part of the chapter on Municipalities, provides: “Notwithstanding anything in this

Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats
to such constituencies, made or purporting to be made under
article 243ZA
shall not be called in question in
any court.”
98 1952 SCR 218
99 Ibid, at para 5
PART E

74 In order to understand the scope of the finality attached to the

Speaker’s decision under
Article 110(3)
, it would be useful to analyse how in

the case of other constitutional provisions, the words “shall be final” have been

interpreted by this Court.
Articles 217(3)100
, 311(3)101
and paragraph 6(1) of

the Tenth Schedule102 contain the phrase “shall be final”.
In
Union of India v

Jyoti Prakash Mitter103
, this Court held that it can examine the legality of an

order passed by the President on the determination of the age of a Judge of

the High Court under
Article 217 (3)
of the Constitution. The six judge Bench

held:

“32…The President acting under
Article 217(3)
performs a
judicial function of grave importance under the scheme of our
Constitution. He cannot act on the advice of his Ministers.
Notwithstanding the declared finality of the order of the
President the Court has jurisdiction in appropriate cases to
set aside the order, if it appears that it was passed on
collateral considerations or the rules of natural justice were
not observed, or that the President's judgment was coloured
by the advice or representation made by the executive or it
was founded on no evidence…Appreciation of evidence is
entirely left to the President and it is not for the Courts to hold
that on the evidence placed before the President on which the
conclusion is founded, if they were called upon to decide the
case they would have reached some other conclusion.”104

The President was held to perform a judicial function in making a

determination under
Article 217(3).
Article 217 (3)
states: “If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision of the President
shall be final.”
Article 311(3)
states: “If, in respect of any such person as aforesaid, a question arises whether it is reasonably

practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered
to dismiss or remove such person or to reduce him in rank shall be final.”
102 Paragraph 6(1) states “If any question arises as to whether a member of a House has become subject to

disqualification under this Schedule, the question shall be referred for the decision of the Chairman, or, as the
case may be, the Speaker of such House and his decision shall be final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House
has become subject to such disqualification, the question shall be referred for the decision of such member of
the House as the House may elect in this behalf and his decision shall be final.”
103 (1971) 1 SCC 396
104 Ibid, at page 397
PART E

The question of finality under
Article 311(3)
was dealt with by a Constitution

Bench of this Court in
Union of India v Tulsiram Patel105
. The Court held that

the finality given to the decision of the disciplinary authority by
Article 311(3)

that it is not reasonably practicable to hold an enquiry, is not binding upon the

Court so far as its power of judicial review is concerned.

The constitutional validity of the provisions contained in the Tenth Schedule to

the Constitution came up for consideration before a Constitution Bench of this

Court in
Kihoto Hollohan v Zachillhu106
. The Constitution Bench held that

the power vested in the Speaker or the Chairman under the Schedule, is a

judicial power, and was amenable to judicial review:

“111…That Paragraph 6(1) of the Tenth Schedule, to the
extent it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from
or abrogate judicial review under
Articles 136
, 226
and
of the Constitution in so far as infirmities based on
violations of constitutional mandates, mala fides, non-

compliance with Rules of Natural Justice and perversity,
are concerned.”107 (Emphasis supplied)

The Bench had also clarified that:

“101…The principle that is applied by the courts is that in
spite of a finality clause it is open to the court to examine
whether the action of the authority under challenge is ultra
vires the powers conferred on the said authority. Such an
action can be ultra vires for the reason that it is in
contravention of a mandatory provision of the law conferring
on the authority the power to take such an action. It will also
be ultra vires the powers conferred on the authority if it is

105 (1985) 3 SCC 398
106 (1992) Supp (2) SCC 651
107 Ibid, at page 711
PART E

vitiated by mala fides or is colourable exercise of power
based on extraneous and irrelevant considerations...”108

Undoubtedly, the finality clauses contained in
Article 217(3)
, 311(3)
and in

paragraph 6(1) of the Tenth Schedule were held not to exclude judicial review

since the essential nature of the power is judicial. A constitutional function is

entrusted to the Speaker to certify a Bill as a Money Bill under
Article 110(3)
,

to which the attributes of a judicial power do not apply. Indeed, the power

which is entrusted to the Speaker under
Article 110(3)
is integral to the

legislative process. But, the fact that the authority which a constitutional

functionary exercises is not of a judicial character, is not sufficient to lead to

the conclusion that a finality clause governing the exercise of that power

makes it immune from judicial review. Where the entrustment of the power is

subject to the due fulfilment of constitutional norms, the exercise of jurisdiction

is amenable to judicial review, to the extent necessary to determine whether

there has been a violation of a constitutional mandate. The nature and extent

of judicial review would undoubtedly vary from a situation where finality has

been attached to a judicial, administrative or quasi-judicial power. However, a

clause on finality notwithstanding, it is open to the constitutional court to

determine as to whether there has been a violation of a constitutional mandate

as a result of which the decision suffers from a constitutional infirmity. The

entrustment of a constitutional function to the Speaker under
Article 110(3)
to

certify a Bill as a Money Bill is premised on the fulfilment of the norms

stipulated in
Article 110(1).
A certification can be questioned on the ground
108 Ibid, at page 708
PART E

that the Bill did not fulfil the conditions stipulated in
Article 110(1)
to be

designated as a Money Bill. If that is established, the certification would be

contrary to constitutional mandate. Whether that is so can be judicially

scrutinized.

75 The notion that an entrustment of power is absolute has a colonial

origin. Law under a colonial regime was not just an instrument to maintain

order but was a source of subordination. Recognition of the vesting of

absolute authority was but a reflection of the premise that those who ruled

could not be questioned. Those who were ruled had to accept the authority of

the ruler. Nothing can be as divorced from constitutional principle as these

normative foundations of colonial law and history. The notion that power is

absolute is inconsistent with a Constitution which subjects the entrustment of

functions to public functionaries to the restraints which accompany it. Our law

must recognise the need to liberate its founding principles from its colonial

past. The Court should not readily accept the notion that the authority vested

in a constitutional functionary is immune from judicial review. In the absence

of a specific exclusion of judicial review, none can be implied. Moreover, any

exclusion of judicial review must be tested on the anvil of its functionality. A

specific exclusion of judicial review, in order to be valid, must serve a

constitutional function. The test of functionality must relate to whether an

exclusion of review is necessary to fulfil the overarching need for the proper

discharge of a constitutional role. Exclusion of review, to be valid, must fulfil
PART E

the requirement of a constitutional necessity. Its purpose cannot be to shield

an excess of power from being questioned before the Court. Nor is the fact

that a power is vested in a high functionary a ground to shield it from scrutiny.

The ultimate test is whether the exclusion of judicial review is express and

specific and, whether such an exclusion is designed to achieve a

constitutional purpose that meets the test of functionality, assessed in terms of

a constitutional necessity. In the seventh decade of the republic, our

interpretation of the Constitution must subserve the need to liberate it from its

colonial detritus.

This approach was adopted by a seven judge Bench of this Court in
Krishna

Kumar Singh v State of Bihar109
. While interpreting the ordinance making

power of the Governor, the Court held that the interpretation of the

Constitution must be “carefully structured” to ensure that the power remains

what the framers of our Constitution intended it to be. The Bench held:

“91…The issue which needs elaboration is whether an
ordinance which by its very nature has a limited life can bring
about consequences for the future (in terms of the creation of
rights, privileges, liabilities and obligations) which will enure
beyond the life of the ordinance. In deciding this issue, the
court must adopt an interpretation which furthers the
basic constitutional premise of legislative control over
ordinances. The preservation of this constitutional value
is necessary for parliamentary democracy to survive on
the sure foundation of the Rule of law and collective
responsibility of the executive to the legislature. The
silences of the Constitution must be imbued with
substantive content by infusing them with a meaning
which enhances the Rule of law. To attribute to the
executive as an incident of the power to frame ordinances, an
unrestricted ability to create binding effects for posterity would

109 (2017) 3 SCC 1
PART E

set a dangerous precedent in a parliamentary democracy.

The court's interpretation of the power to frame ordinances,
which originates in the executive arm of government, cannot
be oblivious to the basic notion that the primary form of law
making power is through the legislature...”110 (Emphasis
supplied)

The ordinance making power was held to be an exceptional power to meet a

“constitutional necessity”.

76 The marginal note to
Article 122
is: “Courts not to inquire into

proceedings of Parliament”. The Article reads thus:

“122. (1) The validity of any proceedings in Parliament shall
not be called in question on the ground of any alleged
irregularity of procedure.

(2) No officer or member of Parliament in whom powers are
vested by or under this Constitution for regulating procedure
or the conduct of business, or for maintaining order, in
Parliament shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.”

This Court must deal with the question whether the Speaker’s decision under

Article 110(3)
is protected by
Article 122.

Article 122
prohibits courts from

examining the validity of any proceedings in Parliament on the ground that

there was “any alleged irregularity of procedure”. The content of the

expression “procedure” referred to in the Article, is indicated in
Article 118
of

the Constitution. The marginal note to
Article 118
provides for “Rules of

procedure”.
Article 118
provides as follows:

“118. (1) Each House of Parliament may make rules for
regulating, subject to the provisions of this Constitution,
its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of
110 Ibid, at pages 76-77
PART E

procedure and standing orders in force immediately before
the commencement of this Constitution with respect to the
Legislature of the Dominion of India shall have effect in
relation to Parliament subject to such modifications and
adaptations as may be made therein by the Chairman of the
Council of States or the Speaker of the House of the People,
as the case may be.

(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the
People, may make rules as to the procedure with respect to
joint sittings of, and communications between, the two
Houses.

(4) At a joint sitting of the two Houses the Speaker of the
House of the People, or in his absence such person as may
be determined by rules of procedure made under clause (3),
shall preside.” (Emphasis supplied)
Articles 118
to 122 are covered under the rubric of the general heading-

“Procedure Generally”.
Article 118
provides for rules to be made by each

House of Parliament for regulating the procedure and conduct of its business.

The Article subjects these contemplated rules to the provisions of the

Constitution. The provision does not indicate that these rules will stand above

the Constitution. They are, on the contrary, subject to the Constitution. The

rules framed under
Article 118
, are procedural in nature. The procedure

contemplated under
Articles 118
to 122 is distinct from substantive

constitutional requirements. The obligation placed on the Speaker of the Lok

Sabha to certify whether a Bill is a Money Bill is not a mere matter of

“procedure” contemplated under
Article 122.
It is a constitutional requirement,

which has to be fulfilled according to the norms set out in
Article 110.

Article
will not save the action of the Speaker, if it is contrary to constitutional

norms provided under
Article 110.
The Court, in the exercise of its power of

judicial review, can adjudicate upon the validity of the action of the Speaker if
PART E

it causes constitutional infirmities.
Article 122
does not envisage exemption

from judicial review, if there has been a constitutional infirmity. The

Constitution does not endorse a complete prohibition of judicial review under

Article 122.
It is only limited to an “irregularity of procedure”.

78 This Court has on several occasions restricted the scope of the bar

provided under
Article 122 (
and under corresponding
Article 212
for the

States) and has distinguished an “irregularity of procedure” from “illegality”. In

Special Reference No. 1 of 1964111, a seven judge Bench of this Court

brought home that distinction in the context of
Article 212(1)
with the following

observations:

“61…Article 212(2) confers immunity on the officers and
members of the Legislature in whom powers are vested by or
under the Constitution for regulating procedure or the conduct
of business, or for maintaining order, in the Legislature from
being subject to the jurisdiction of any court in respect of the
exercise by him of those powers.
Art. 212(1)
seems to make it
possible for a citizen to call in question in the appropriate
court of law the validity of any proceedings inside the
legislative chamber if his case is that the said proceedings
suffer not from mere irregularity of procedure, but from
an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinised in a
court of law, though such scrutiny is prohibited if the
complaint against the procedure is no more than this that
the procedure was irregular...” (Emphasis supplied)

In Ramdas Athawale v Union of India112 (“Ramdas Athawale”), a

Constitution Bench of this Court extended the above formulation to
Article 122

of the Constitution:

111 AIR 1965 SC 745
112 (2010) 4 SCC 1
PART E

“36.This Court Under
Article 143
, Constitution of India, In re
(Special Reference No. 1 of 1964) [AIR 1965 SC 745 : (1965)
1 SCR 413] (also known as Keshav Singh case [AIR 1965 SC
745 : (1965) 1 SCR 413] ) while construing
Article 212(1)

observed that it may be possible for a citizen to call in
question in the appropriate Court of law, the validity of any
proceedings inside the Legislature if his case is that the said
proceedings suffer not from mere irregularity of procedure,
but from an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinized in a Court
of law, though such scrutiny is prohibited if the complaint
against the procedure is no more than this that the procedure
was irregular. The same principle would equally be applicable
in the matter of interpretation of
Article 122
of the
Constitution.”113

A Constitution Bench of this Court reaffirmed the distinction between a

“procedural irregularity” and an “illegality” in Raja Ram Pal v Hon'ble

Speaker, Lok Sabha114 (“Raja Ram Pal”). The Bench held that courts are

not prohibited from exercising their power of judicial review to examine any

illegality or unconstitutionality in the procedure of Parliament:

“386…Any attempt to read a limitation into
Article 122
so as
to restrict the court's jurisdiction to examination of the
Parliament's procedure in case of unconstitutionality, as
opposed to illegality would amount to doing violence to the
constitutional text. Applying the principle of “expressio unius
est exclusio alterius” (whatever has not been included has by
implication been excluded), it is plain and clear that
prohibition against examination on the touchstone of
"irregularity of procedure" does not make taboo judicial
review on findings of illegality or unconstitutionality…115

398… the Court will decline to interfere if the grievance
brought before it is restricted to allegations of “irregularity of
procedure”. But in case gross illegality or violation of
constitutional provisions is shown, the judicial review will not
be inhibited in any manner by
Article 122
, or for that matter by
Article 105.”116

113 Ibid, at pages 13-14
114 (2007) 3 SCC 184
115 Ibid, at page 359
116 Ibid, at page 362
PART E

The Court distinguished the constitutional background in India from that of

England, holding that while England has adopted a regime of exclusive

parliamentary dominance, India is governed by a system of checks and

balances provided in the Constitution:

“366.The touchstone upon which Parliamentary actions within
the four-walls of the Legislature were examined was both the
constitutional as well as substantive law. The proceedings
which may be tainted on account of substantive illegality
or unconstitutionality, as opposed to those suffering
from mere irregularity thus cannot be held protected
from judicial scrutiny by
Article 122(1)
in as much as the
broad principle laid down in Bradlaugh [(1884) 12 QBD 271]
acknowledging exclusive cognizance of the Legislature in
England has no application to the system of governance
provided by our Constitution wherein no organ is
sovereign and each organ is amenable to constitutional
checks and controls, in which scheme of things, this
Court is entrusted with the duty to be watchdog of and
guarantor of the Constitution.”117 (Emphasis supplied)

The principle which emerges from these decisions is that the decision of the

Speaker is amenable to judicial review, if it suffers from illegality or from a

violation of constitutional provisions.

79 The Attorney General advanced the submission that this Court has on

previous occasions refrained from scrutinizing the decision of the Speaker on

whether a Bill is a Money Bill. Those decisions require discussion for

adjudicating the present case.
In
Mangalore Ganesh Beedi Works v State of

Mysore118 (“Mangalore Beedi”
), a new system of coinage was introduced by

amending the Indian Coinage Act. Under the new system, while one rupee

117 Ibid, at page 350
118 1963 Supp (1) SCR 275
PART E

was divided into a hundred naya paisas, the old legal tender of sixteen annas

or sixty four pice remained legal tender equivalent to one hundred naya

paisas. The appellant, which was a firm registered under the Mysore Sales

Tax Act, had to pay an additional amount as sales tax due to change in the

currency. It was argued that by the substitution of 2 naya paisas (the new

currency) in place of 3 pies (the old currency) as tax, there was a change in

the tax imposed by the Mysore Sales Tax Act, which could only have been

done by passing a Money Bill under
Articles 198
, 199
and
of the

Constitution and since no Money Bill was introduced or passed for the

enhancement of the tax, the tax was illegal and invalid. The contention,

therefore, was that the procedure envisaged for passing a Money Bill ought to

have been, but was not, followed. The Constitution Bench dismissed the

appeal, holding that the substitution of a new coinage i.e. naya paisas in place

of annas, pice and pies did not amount to an enhancement of tax. It was held

to be merely a substitution of one coinage by another of equivalent value. This

Court held that the levy of tax in terms of naya paisas was not unconstitutional

nor was it a taxing measure but it dealt merely with the conversion of the old

coinage into new coinage. Having held this, the Bench also remarked:

“5…Even assuming that it is a taxing measure its validity
cannot be challenged on the ground that it offends Arts. 197
to 199 and the procedure
laid down in

Art. 202
of the
Constitution.
Article 212
prohibits the validity of any
proceedings in a legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure and
Art. 255
lays down that requirements as to
recommendation and previous sanction are to be regarded as
matters of procedure only...”
PART E

The Court having found that a substitution of coinage did not result in an

enhancement of tax,
Article 199
was not attracted. The legislative measure

was not a Money Bill. Once that was the case, the subsequent observations

(extracted above) proceeded on an assumption: that even if it were a taxing

measure, it would be saved by
Article 255.
The court having held that no

enhancement of tax was involved in a mere substitution of coinage, the

alternative hypothesis is not a part of the ratio and was unnecessary. The ratio

was that substitution of a new coinage did not amount to a Money Bill. The

decision of the Constitution Bench in Mangalore Beedi dealt with the

contention that a Money Bill was unconstitutionally passed as an ordinary Bill.

The Bench held that substitution of coinage did not make it a Money Bill. The

decision contains a general observation regarding the immunity of

proceedings in a state legislature. A scholarly article119 has correctly referred

to the general remarks made in Mangalore Beedi as unnecessary and not the

ratio since the issue was already decided on merits, by holding that the

substitution of coinage was not an enhancement of tax.

80 A three judge Bench of this Court in Mohd Saeed Siddiqui v State of

Uttar Pradesh120 (“Mohd Saeed Siddiqui”) dealt with the constitutional

validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act,

2012.
Section 5(1)
of the unamended Act provided a term of six years for the

Lokayukta.
Section 5(3)
provided that on ceasing to hold office, the Lokayukta

119 Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, Vol 10, NUJS Law Review
(2017).

120 (2014) 11 SCC 415
PART E

or Up-Lokayukta shall be ineligible for further appointment. The new State

government, which came in office, introduced a Bill which was passed as the

Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012, by

which the term of the U.P. Lokayukta and Up-Lokayukta was extended from

six years to eight years or till the successor enters upon office. The

Amendment Act also limited the ineligibility of the Lokayuktas or Up-

Lokayuktas for further appointment under the Government of Uttar Pradesh.

The Amendment Act was challenged on the ground that it was passed as a

Money Bill when, on the face of it, it could never have been called a Money

Bill under
Article 199
of the Constitution. The Bench rejected the petition

holding that the question “whether a Bill is a Money Bill or not can be raised

only in the State Legislative Assembly by a member thereof when the Bill is

pending in the State Legislature and before it becomes an Act”. It relied upon

the observations made in Mangalore Beedi, to formulate following principles:

“(i) the validity of an Act cannot be challenged on the ground
that it offends
Articles 197
to 199 and the procedure laid
down in
Article 202; (ii)

Article 212
prohibits the validity of any
proceedings in a Legislature of a State from being called in
question on the ground of any alleged irregularity of
procedure; and (iii)
Article 255
lays down that the
requirements as to recommendation and previous sanction
are to be regarded as a matter of procedure only. It is further
held that the validity of the proceedings inside the Legislature
of a State cannot be called in question on the allegation that
the procedure laid down by the law has not been strictly
followed and that no Court can go into those questions which
are within the special jurisdiction of the Legislature itself,
which has the power to conduct its own business.”
PART E

The judgment also made a reference to the seven judge Bench decision in

Pandit MSM Sharma v Dr Shree Krishna Sinha121 (“MSM Sharma”).

The “proceedings of the Legislature” were held to include “everything said or

done in either House” in the transaction of parliamentary business. Relying

upon
Articles 212
and
, the Bench accorded finality to the decision of the

Speaker:

“43. As discussed above, the decision of the Speaker of the
Legislative Assembly that the Bill in question was a Money
Bill is final and the said decision cannot be disputed nor can
the procedure of the State Legislature be questioned by virtue
of
Article 212.
Further, as noted earlier,
Article 255
also
shows that under the Constitution the matters of procedure do
not render invalid an Act to which assent has been given to
by the President or the Governor, as the case may be.
Inasmuch as the Bill in question was a Money Bill, the
contrary contention by the Petitioner against the passing of
the said Bill by the Legislative Assembly alone is
unacceptable.”122

Making a passing reference to the decision of the Constitution Bench in Raja

Ram Pal, the Bench opined that even if it is established that there was some

infirmity in the procedure in the enactment of the Amendment Act, it will be

protected by
Article 255
of the Constitution.

81 Subsequently, a two judge Bench of this Court in Yogendra Kumar

Jaiswal v State of Bihar123 (“Yogendra Kumar”) dealt with the constitutional

validity of the
Orissa Special Courts Act, 2006
. The law was enacted by the

121 AIR 1960 SC 1186
122 Mohd Saeed Siddiqui, Ibid, at page 430
123 (2016) 3 SCC 183
PART E

State legislature, keeping in view the accumulation of properties

disproportionate to their known sources of income by persons who have held

or hold high political and public offices. The legislature provided special courts

for speedy trial of certain classes of offences and for confiscation of

properties. The appellants, who were public servants and facing criminal

cases, challenged the Act on the ground that it was introduced in the State

Assembly as a Money Bill though it did not have any characteristics of a

Money Bill under
Article 199
of the Constitution. The Court dismissed the

petitions, following the decision in Mohd Saeed Siddiqui. It held that:

“43.
In our considered opinion, the authorities cited by the
learned Counsel for the Appellants do not render much
assistance, for the introduction of a bill, as has been held in

Mohd. Saeed Siddiqui
(supra), comes within the concept of
“irregularity” and it does come with the realm of substantiality.

What has been held in the Special Reference No. 1 of 1964
(supra) has to be appositely understood.
The factual matrix
therein was totally different than the case at hand as we find
that the present controversy is wholly covered by the
pronouncement in
Mohd. Saeed Siddiqui
(supra) and hence,
we unhesitatingly hold that there is no merit in the submission
so assiduously urged by the learned Counsel for the
Appellants.”124

Special Reference No. 1 of 1964 was distinguished in Yogendra Kumar.

Article 255
provides:

“
No Act
of Parliament or of the Legislature of a State, and no
provision in any such Act, shall be invalid by reason only that
some recommendation or previous sanction required by this
Constitution was not given, if assent to that Act was given—

(a) where the recommendation required was that of the
Governor, either by the Governor or by the President;

(b) where the recommendation required was that of the
Rajpramukh, either by the Rajpramukh or by the President;

124 Ibid, at page 229
PART E

(c) where the recommendation or previous sanction required
was that of the President, by the President.”
Article 255
speaks about a situation where a “recommendation or

previous sanction” is required to be given by the Governor, Rajpramukh or, as

the case may be, by the President. The absence of a recommendation or

previous sanction will not invalidate the law, where the Act has received the

assent of the Governor or the President. Subsequent assent, in other words,

cures the absence of recommendation or sanction.
Article 255
is in no way

related to the decision or certificate of the Speaker of the Lok Sabha or of the

State Legislative Assembly on whether a Bill is a Money Bill. Moreover,
Article
does not apply to
Articles 110
for the simple reason that the latter does

not embody either a previous sanction or recommendation.
Article 255
does

not envisage superseding the role of the Upper House of Parliament or the

State Legislature. Mohd Saeed Siddiqui proceeds on an erroneous

understanding of
Article 255.
Mohd Saeed Siddiqui was followed in

Yogendra Kumar. These two judgments cite the same three articles —

Articles 199,125 212,126 and 255, to refrain from questioning the conduct of the

Speaker, without noticing that
Article 255
does not apply there.

Further, MSM Sharma, which was referred in Mohd Saeed Siddiqui was

discussed in the Special Reference to hold that the validity of any

proceedings in a legislative chamber can be questioned if such proceedings

125 Corresponding provision for the Union is
Article 110
of the Constitution.
126 Corresponding provision for the Union is
Article 122
of the Constitution.
PART E

suffer from illegality. The consistent thread which emerges from the judgments

in Special Reference, Ramdas Athawale and Raja Ram Pal is that the

validity of proceedings in Parliament or a State Legislature can be subject to

judicial review on the ground that there is an illegality or a constitutional

violation. Moreover, the judgment in Yogendra Kumar followed Mohd Saeed

Siddiqui. Siddiqui was based on an erroneous understanding of Mangalore

Beedi. The decision of the Speaker under
Articles 110(3)
and
199(3)
is not

immune from judicial review.

The three judge Bench decision in Mohd Saeed Siddiqui and the two judge

Bench decision in Yogendra Kumar are overruled.

83 Barring judicial review of the Lok Sabha Speaker’s decision would

render a certification of a Bill as a Money Bill immune from scrutiny, even

where the Bill does not, objectively speaking, deal only with the provisions set

out in
Article 110(1).
The decision of the Speaker of the Lok Sabha whether a

Bill is a Money Bill impacts directly upon the constitutional role which will be

discharged by the Rajya Sabha in relation to it. The Lok Sabha alone does not

represent Parliament. The Indian Parliament is bicameral. The Constitution

envisages a special role for the Rajya Sabha. In order to truly understand the

relevance of the Rajya Sabha in the Indian context, an analysis of major

bicameral systems is necessary, as an exercise in comparative law.
PART E

84 Bicameral legislatures are not unique to either the Presidential or

Parliamentary forms of government. Democracies with a Presidential form of

government have adopted bicameral legislatures, the United States being the

leading example. Among Parliamentary democracies, India and the UK have

adopted bicameral legislatures. They are predominant in federal countries.

Where second chambers exist, they vary in terms of powers and composition.

Together, their powers and composition shape the impact that they have on

legislation.127 The phenomenon of the bicameral system has two different

historic origins. It was first established in England, and later in the US.128 Both

these models have been replicated across the globe.

85 Britain developed some of the earliest institutional practices that came

to be emulated through the Western world. A separate powerful legislature

was initiated when King John in 1215 gave a written commitment to seek the

consent of Parliament to levy taxes to which he was entitled by feudal

prerogative. Over the next five centuries, the British Parliament was

transformed from an institution summoned at the desire of the ruler to one

which met on regular occasions to develop policy inclinations independent of

the wishes of the ruler.129 In the fourteenth century, Parliament was divided

into two chambers: one chamber (the House of Lords) in which debate took

place with the feudal lords and a second chamber (the House of Commons)

127 Fathali M. Moghaddam, The SAGE Encyclopaedia of Political Behaviour (2017).
128 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
129 Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions and

Economic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at pages 251-252
PART E

where the citizens were represented.130 The upper chamber of the British

Parliament, the Lords, comprised of hereditary peers (whose number varied

with the discretion of the King to create them). The lower chamber, the

Commons, represented individuals satisfying a substantial property

requirement. The two chambers in Britain reflected a kind of class division.

Before the beginning of the eighteenth century, several factors such as civil

war, regicide, experimentation with a republic, and the restoration of the titular

monarch caused power to be permanently shifted from the King to

Parliament.131

Around the same time, the British colonies in North America were crafting

institutions of their own. Colonial legislatures were being conceptualized on

similar lines, with some exceptions, to British Parliament. The Constitution for

the newly formed United States adopted a bicameral system.132 The

legislature in the United States was innovative, for it created a bicameral

arrangement that replaced a class basis (as was in existence in Britain) for

chamber representation with a modified federal basis. The Constitutional

Convention of 1787 had provided for a lower chamber, a directly-elected

House of Representatives, where each voter had an equal vote in elections,

and an upper chamber, a Senate, to which each state could send two

members, elected indirectly by the state parliaments. The Convention was a

130 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
131 Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of Bicameralism, in Institutions and
Economic Performance (Elhanan Helpman ed.), Harvard University Press (2008), at page 252
132 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 8
PART E

compromise between those who wanted a parliament in which the states,

irrespective of their population size, would have an equal voice, and those

who wanted a Parliament for the newly formed federal nation where the

participating states were represented in proportion to the size of their

population. A system with two differently composed chambers was ultimately

chosen to be the only way out of the deadlock.133 The rationale for a

bicameral legislature comprising of a directly elected Lower House and an

indirectly elected Upper House was best articulated by James Madison, in the

Federalist Papers:

“First… a senate, as a second branch of the legislative
assembly, distinct from, and dividing the power with, a first,
must be in all cases a salutary check on the government. It
doubles the security to the people, by requiring the
concurrence of two distinct bodies in schemes of usurpation
or perfidy, where the ambition or corruption of one would
otherwise be sufficient…
Second. The necessity of a senate is not less indicated by the
propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be
seduced by factious leaders into intemperate and pernicious
resolutions…
Third. Another defect to be supplied by a senate lies in a want
of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men called
for the most part from pursuits of a private nature, continued
in appointment for a short time, and led by no permanent
motive to devote the intervals of public occupation to a study
of the laws, the affairs, and the comprehensive interests of
their country, should, if left wholly to themselves, escape a
variety of important errors in the exercise of their legislative
trust… A good government implies two things: first, fidelity to
the object of government, which is the happiness of the
people; secondly, a knowledge of the means by which that
object can be best attained…
Fourth. The mutability in the public councils arising from a
rapid succession of new members, however qualified they

133Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015), at page 7
PART E

may be, points out, in the strongest manner, the necessity of
some stable institution in the government…”134

Madison conceptualized that the second chamber would fulfil significant roles:

(a) it would provide the certainty that the government will not neglect its

obligations to its constituents, as the chamber provides an extra check on it;

(b) it can curb the actions of the other chamber if it gives into the urge to

follow ‘sudden and pronounced sentimental reactions’; (c) it can meet the

need for expertise in the framing of laws and the interests of the country, and

thus help to avoid legislative mistakes; and (d) it can be a factor for stability

that ensures continuity in the administration of the country.

86 Bicameralism, in both systems, emerged as a development associated

with the changing conceptions of the state. The literature on bicameralism has

highlighted the importance of having a second chamber in the legislature of a

state. William Riker has emphasized that a bicameral structure acts as a

control over the tyranny of a majority.135 Levmore similarly echoes this

thought:

“At the very least, if the two chambers consider an issue
simultaneously, one chamber’s agenda setter will be at the
mercy of the order of consideration in the second chamber.
Bicameralism can thus be understood as an antidote to the
manipulative power of the convenor, or agenda setter, when
faced with cycling preferences.”136

134 James Madison, The Federalist No. 62 – The Senate, The Federalist Papers (1788), available at
http://www.constitution.org/fed/federa62.html
135 William H. Riker, The Justification of Bicameralism, International Political Science Review (1992), Vol. 13,

Issue 1, at pages 101–16.

136 Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, International Review of Law and

Economics (1992), Vol. 12, at pages 147-148.
PART E

A study137 commissioned by the Dutch Ministry of the Interior and Kingdom

Relations analysed the design of the bicameral system in several countries.

The study consulted constitutional texts and literature on the evolution of

bicameralism and came to the finding that:

“Historically, the creation of bicameral systems, both in the
federal and the aristocratic variant, always was a concession
to those (states or estates) who risked losing power in the
new setting. In emerging democracies, and up until the
present day, the choice of a bicameral system appears as a
means of dispelling fear about the consequences of
democratisation and reconciling established elites with the
democratisation process. In developed democracies, the
rationale of a bicameral system is now sought primarily in the
possibility of combining different systems of representation
(particularly in federal systems) and in the possibility of
reconsideration by a different chamber in the legislative,
making it possible to avoid making mistakes and enhancing
both the quality and the stability of the legislation. In majority
systems of the Westminster model - where the government is
part of the lower house and it tends to have a stable majority -
a senate moreover is sometimes ascribed the role of giving
more independent input into the parliamentary work, less
determined by party discipline, and of paying more attention
to the interests of minorities. A bicameral system is, for that
reason, sometimes recommended as a means to protect
minorities against a tyranny of the majority… Finally, a
bicameral system may also increase efficiency because it is
possible to divide the legislative workload between two
chambers. That can be the case when the two chambers
absorb a sort of division of labour (e.g. an emphasis on
technical legal quality in the senate). In many bicameral
systems, moreover, it can be decided to put bills to either
house, and the senate also has a right of initiative.”138

87 The importance of the second chamber increases when there is no

single party rule in Parliament. Governments that lack Upper-House majority

137 Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom
Relations- Netherlands (2015).

138 Ibid, at pages 11-12
PART E

support find it difficult to pass Bills.139 Elliot Bulmer notes pertinently that in a

democracy, a second chamber addresses the inability of the elected chamber

to adequately represent a diverse society. In this view, a second chamber

may enable a “more nuanced and complete representation of society, with

greater representation for territorial, communal or other minorities”.140

While discussing the advantage of second chambers in republican

legislatures, Rogers observes that the institution of a second chamber

generates legislative advantage only “if the chambers differ significantly from

one another”.141 Quoting from the work of various scholars, he observes:

“Hammond and Miller find that “The stability-inducing
properties of bicameralism are . . . dependent on the
existence of distinctly different viewpoints in the two
chambers”… Buchanan and Tullock conclude similarly that,
“unless the bases for representation are significantly different
in the two houses, there would seem to be little excuse for the
two-house system”… Because two “congruent” chambers
would ostensibly not significantly affect policy outcomes,
Lijphart described bicameral systems with congruent
chambers as “weak” forms of bicameralism…”142

88 Bicameralism, when entrenched as a principle in a constitutional

democracy, acts as a check against the abuse of power by constitutional

means or its use in an oppressive manner. As a subset of the constitutional

principle of division of power, bicameralism is mainly a safeguard against the

abuse of the constitutional and political process. A bicameral national

139 James N. Druckman & Michael F. Thies, The Importance of Concurrence: The Impact of Bicameralism on
Government Formation and Duration, American Journal of Political Science (2002), Vol. 46, No. 4, at pages
760-771.

140 Elliot Bulmer, Bicameralism, International Institute for Democracy and Electoral Assistance (2017), at page 4
141 James R. Rogers, The Advantage of Second Chambers in Republican Legislatures: An Informational Theory,

at page 6, available at https://ecpr.eu/Filestore/PaperProposal/beb20221-c2c5-4475-9b9f-74bb3f1512a7.pdf
142 Ibid
PART E

parliament can hold the government accountable and can check or restrain

the misuse of government power. Among its other roles is that of representing

local state units, acting as a body of expert review, and providing

representation for diverse socio-economic interests or ethno-cultural

minorities.

While deliberating over the necessity of having a second chamber, the

Constituent Assembly had the benefit of examining the constitutional history

of several other nations. The constitutional advisor, B N Rau, found the issue

of second chambers to be “one of the most vexing questions of political

science”.143 Under colonial rule, bicameralism had already been introduced.

The first bicameral legislature as the national assembly for India was

established by the
Government of India Act
1919.
The Government of India

Act, 1935
had created an Upper House in the federal legislature which

consisted of members elected by the provincial legislatures as well as

representatives sent by numerous princely states that were not under the

direct control of the British government. The 1935 Act became the blueprint

for the structure of Parliament in the new Constitution. The Rajya Sabha, as

the Upper House of the Parliament, was adopted into the Constitution. The

vision of the Constitution makers behind the establishment of the Upper

House of Parliament has found expression in the classic work of Granville

Austin:

143Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page
PART E

“The members of the Constituent Assembly had one
predominant aim when framing the Legislative provisions of
the Constitution: to create a basis for the social and political
unity of the country… The goals of the Constituent
Assembly… were to bring popular opinion into the halls of
government, and, by the method of bringing it there, to show
Indians that although they were many peoples, they were but
one nation.”144
Article 80
of the Constitution deals with the composition of the Rajya

Sabha. The maximum strength of this chamber is 250 members, out of which

up to 238 members are elected representatives from the states and union

territories. 12 members are nominated by the President among persons with

a special knowledge or practical experience in literature, science, art and

social service. Members representing the states are elected by the state

legislatures through proportional representation by means of a single

transferable vote145. The method of electing representatives from Union

territories has been left to prescription by Parliament.146 In a departure from

the American model of equal representation for the states, the allocation of

seats in the Rajya Sabha to the States and Union territories is in accordance

with the division provided in the Fourth Schedule of the Constitution (read with

Articles 4(1)
and
80(2)
). The reason behind this division of seats is “to

safeguard the interests of the smaller states while at the same time ensuring

the adequate representation of the larger states, so that the will of the

representatives of a minority of the electorate does not prevail over that of

144 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at pages
180 & 203
Article 80(4)
, The Constitution of India
Article 80(5)
, The Constitution of India
PART E

those who represented the majority”147. In this sense, the Rajya Sabha has a

special structure.

90 The institutional structure of the Rajya Sabha has been developed to

reflect the pluralism of the nation and its diversity of language, culture,

perception and interest. The Rajya Sabha was envisaged by the makers of

the Constitution to ensure a wider scrutiny of legislative proposals. As a

second chamber of Parliament, it acts as a check on hasty and ill-conceived

legislation, providing an opportunity for scrutiny of legislative business. The

role of the Rajya Sabha is intrinsic to ensuring executive accountability and to

preserving a balance of power. The Upper Chamber complements the

working of the Lower Chamber in many ways. The Rajya Sabha acts as an

institution of balance in relation to the Lok Sabha and represents the federal

structure148 of India.
Both the existence and the role of the Rajya Sabha

constitute a part of the basic structure of the Constitution. The architecture of

our Constitution envisions the Rajya Sabha as an institution of federal

bicameralism and not just as a part of a simple bicameral legislature. Its

nomenclature as the ‘Council of States’ rather than the ‘Senate’ appropriately

justifies its federal importance.149 Seervai has observed that the federal

principle is dominant in our Constitution. While adverting to several of its

147 Sidharth Chauhan, Bicameralism: comparative insights and lessons, Seminar (February, 2013) available at
http://india-seminar.com/2013/642/642_sidharth_chauhan.html
148 In
SR Bommai v Union of India
(AIR 1994 SC 1998), a seven-judge Bench of this Court held: “Democracy and

federalism are the essential features of our Constitution and are part of its basic structure.”
149 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at

page 2. See also M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat

(2001)
PART E

federal features, Seervai emphasises the position of the Rajya Sabha as an

integral element:

“First and foremost, Parliament (the Central Legislature) is
dependent upon the States, because one of its Houses, the
Council of States, is elected by the Legislative Assemblies of
the States. Where the ruling party, or group of parties, in the
House of the People has a majority but not an overwhelming
majority, the Council of States can have a very important
voice in the passage of legislation other than financial Bills.
Secondly, a Bill to amend the Constitution requires to be
passed by each House of Parliament separately by an
absolute majority in that House and by not less than two-
thirds of those present and voting. Since the Council of States
is indirectly elected by the State Legislatures, the State
Legislatures have an important say in the amendment of the
Constitution because of the requirement of special majorities
in each House. Thirdly, the very important matters mentioned
in the proviso to
Article 368 (Amendment of the Constitution)

cannot be amended unless the amendments passed by
Parliament are ratified by not less than half the number of
Legislatures of the States… Fourthly, the amendment of

Article 352
by the 44th Amendment gives the Council of
States a most important voice in the declaration of
Emergency, because a proclamation of emergency must be
approved by each House separately by majorities required for
an amendment of the Constitution… Fifthly, the executive
power of the Union is vested in the President of India who is
not directly elected by the people but is elected by an
electoral college consisting of (a) the elected members of the
Legislative Assemblies of the States and (b) the elected
members of both Houses of Parliament… Directly the State
Legislatures have substantial voting power in electing the
President; that power is increased indirectly through the
Council of States, which is elected by the Legislative
Assemblies of States.”150

91 The Rajya Sabha represents the constituent states of India. It

legitimately holds itself as the guardian of the interest of the component states

in a federal polity. It endeavours to remain concerned and sensitive to the

aspirations of the states, thereby strengthening the country’s “federal fabric”

150 H M Seervai, Constitutional Law of India, Universal Law Co. Pvt. Ltd, Vol. 1, (1991), at pages 299-300.
PART E

and “promotes national integration”.151 Being the federal chamber of

Parliament, the Rajya Sabha enjoys some special powers, which are not even

available to the Lok Sabha, under the Constitution152:

“(i)
Article 249
of the Constitution provides that Rajya Sabha
may pass a resolution, by a majority of not less than two-
thirds of the Members present and voting to the effect that it is
necessary or expedient in the national interest that Parliament
should make a law with respect to any matter enumerated in
the State List. Then, Parliament is empowered to make a law
on the subject specified in the resolution for the whole or any
part of the territory of India. Such a resolution remains in force
for a maximum period of one year but this period can be
extended by one year at a time by passing a further
resolution;

(ii) Under Article 312 of the Constitution, if Rajya Sabha
passes a resolution by a majority of not less than two-thirds of
the Members present and voting declaring that it is necessary
or expedient in the national interest to create one or more All
India Services common to the Union and the States,
Parliament has the power to create by law such services; and

(iii) Under the Constitution, President is empowered to issue
Proclamations in the event of national emergency (Article

352), in the event of failure of constitutional machinery in a
State (
Article 356
), or in the case of financial emergency
(
Article 360
). Normally, every such Proclamation has to be
approved by both Houses of Parliament within a stipulated
period. Under certain circumstances, however, Rajya Sabha
enjoys special powers in this regard. If a Proclamation is
issued at a time when the dissolution of the Lok Sabha takes
place within the period allowed for its approval, then the
Proclamation can remain effective if a resolution approving it,
is passed by Rajya Sabha.”

92 The Rajya Sabha is a permanent body as it is not subject to

dissolution.153 Being an indirectly elected House, it has no role in the making

or unmaking of the Government and therefore it is comparatively “free from

151 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
page 6.

152 Rajya Sabha Secretariat, Structure and Functions of Rajya Sabha Secretariat, (2009), at pages 2-3
153 Under
Article 83(1)
, the Rajya Sabha is a permanent body with members being elected for 6 year terms and

one-third of the members retiring every 2 years.
PART E

compulsions of competitive party politics”.154 As a revising chamber, the

Constitution makers envisioned that it will protect the values of the

Constitution, even if it is against the popular will. The Rajya Sabha is a symbol

against majoritarianism.

A Constitution Bench of this Court in
Kuldip Nayar v Union of India155

highlighted the importance of the Rajya Sabha:

“47. The Rajya Sabha is a forum to which experienced public
figures get access without going through the din and bustle of
a general election which is inevitable in the case of Lok
Sabha. It acts as a revising chamber over the Lok Sabha. The
existence of two debating chambers means that all proposals
and programmes of the Government are discussed twice. As
a revising chamber, the Rajya Sabha helps in improving Bills
passed by the Lok Sabha...”156

93 Participatory governance is the essence of democracy. It ensures

responsiveness and transparency. An analysis of the Bills revised by the

Rajya Sabha reveals that in a number of cases, the changes recommended

by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually

carried out.157 The Dowry Prohibition Bill is an example of a legislation in

which the Rajya Sabha’s insistence on amendments led to the convening of a

joint sitting158 of the two Houses and in that sitting, one of the amendments

154 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
pages 7-8
155 (2006) 7 SCC 1
156 Ibid, at page 47
157 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at

page 5
158 Dr Ambedkar explained that the joint sitting had been kept at the centre because of the federal character of

the Central Legislature. See Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1966), at page 202
PART E

suggested by the Rajya Sabha was adopted without a division. 159 The Rajya

Sabha has a vital responsibility in nation building, as the dialogue between the

two houses of Parliament helps to address disputes from divergent

perspectives. The bicameral nature of Indian Parliament is integral to the

working of the federal Constitution. It lays down the foundations of our

democracy. That it forms a part of the basic structure of the Constitution, is

hence based on constitutional principle. The decision of the Speaker on

whether a Bill is a Money Bill is not a matter of procedure. It directly impacts

on the role of the Rajya Sabha and, therefore, on the working of the federal

polity.

94 There is a constitutional trust which attaches to the empowerment of

the Speaker of the Lok Sabha to decide whether a legislative measure is a

Money Bill. Entrustment of the authority to decide is founded on the

expectation that the Speaker of the Lok Sabha will not dilute the existence of

a co-ordinate institution in a bicameral legislature. A constitutional trust has

been vested in the office of the Speaker of the Lok Sabha. By declaring an

ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya

Sabha. This power cannot be unbridled or bereft of judicial scrutiny. If the

power of the Speaker is exercised contrary to constitutional norms, it will not

only limit the role of the Rajya Sabha, but denude the efficacy of a legislative

body created by the Constitution. Such an outcome would be inconsistent

159 Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of Rajya Sabha, (2009), at
page 5
PART E

with the scheme of the Indian Constitution. Judicial review is necessary to

ensure that the federal features of the Constitution are not transgressed.

E.2 Aadhaar Act as a Money Bill

This Court must now deal with whether the Aadhaar Act was validly passed as

a Money Bill.
Article 110(1)
of the Constitution defines a Money Bill. For a Bill to be a

Money Bill, it must contain “only provisions” dealing with every or any one of

the matters set out in sub-clauses (a) to (g) of clause 1 of
Article 110.
The

expression “if it contains only provisions dealing with all or any of the following

matters, namely...” is crucial. Firstly, the expression “if” indicates a condition

and it is only upon the condition being fulfilled that the deeming fiction of a Bill

being a Money Bill for the purposes of the Chapter will arise. Secondly, to be a

Money Bill, the Bill should have only those provisions which are referable to

clauses (a) to (g). The condition is much more stringent than stipulating that

the Bill should incorporate any of the matters spelt out in clauses (a) to (g).

The words “only provisions” means that besides the matters in sub clauses (a)

to (g), the Bill shall not include anything else. Otherwise, the expression “only”

will have no meaning. The word “only” cannot be treated to be otiose or

redundant. Thirdly, the two expressions “if it contains only provisions” and

“namely” indicate that sub-clauses (a) to (g) are exhaustive of what a Money

Bill may contain. The contents of a Money Bill have to be confined to all or any
PART E

of the matters specified in sub-clauses (a) to (g). Fourthly, sub-clause (g)

covers any matter incidental to sub-clauses (a) to (f). A matter is incidental

when it is ancillary to what is already specified. Sub-clause (g) is not a

residuary entry which covers all other matters other than those specified in

sub-clauses (a) to (f). If sub-clause (g) were read as a catch-all residuary

provision, it would defeat the purpose of defining a class of Bills as Money

Bills. What is incidental under sub-clause (g) is that which is ancillary to a

matter which is already specified in sub-clauses (a) to (f). The test is not

whether it is incidental to the content of a Bill but whether it is incidental to any

of the matters specifically enumerated in sub-clauses (a) to (f). The Attorney

General would request the court to read the word “only” before “if” and not

where it occurs. If the submission were to be accepted, it would lead to the

consequence that the Bill would be a Money Bill if it contained provisions

dealing with clause (a) to (g), even if it contained other provisions not relatable

to these clauses. We cannot rewrite the Constitution, particularly where it is

contrary to both text, context and intent.

Clause (2) of
Article 110
provides that a Bill shall not be deemed to be a

Money Bill just for the reason that it provides for the imposition of fines or

other pecuniary penalties, or for the demand or payment of fees for licences or

fees for services rendered, or by reason that it provides for the imposition,

abolition, remission, alteration or regulation of any tax by any local authority or

body for local purposes. Like in the Parliament Act of 1911, the definition of a
PART E

Money Bill provided under
Article 110(1)
is exhaustive in nature. A Bill can be

a Money Bill if it contains “only provisions” dealing with all or any of the

matters listed under sub-clauses (a) to (g) of
Article 110(1).

96 A Financial Bill is different from a Money Bill.
Article 117
provides for

special provisions relating to Financial Bills. Clause (1) of
Article 117
states:

“(1) A Bill or amendment making provision for any of the
matters specified in sub-clauses (a) to (f) of clause (1) of

article 110
shall not be introduced or moved except on the
recommendation of the President and a Bill making such
provision shall not be introduced in the Council of States.”

A Financial Bill does not need to have “only provisions” dealing with Sub-

clauses (a) to (f) of
Article 110.
The provisions of
Article 110(1)
are therefore

narrow and exhaustive.

97 As a matter of interpretation, the use of the word “only” indicates that a

particular entry is exhaustive and is inapplicable to anything which falls

outside its scope. This Court has interpreted the expression “only” as a word

of exclusion and restriction.160 The interpretation of
Article 110(1)
as being

restrictive in nature is also supported by the proceedings in the Constituent

Assembly of India.
Article 110
corresponds to
Article 90
of the Draft

Constitution. On 20 May 1949, a member of the Constituent Assembly,

Ghanshyam Singh Gupta, proposed an amendment in clause (
1) of
Article 90

160Hari
Ram v. Baby Gokul Prasad
, (1991) Supp (2) SCC 608; M/s
Saru Smelting (P) Ltd. v. Commissioner of
Sales Tax, Lucknow
, (1993) Supp (3) SCC 97.
PART E

to delete the word “only”. He stated that a Bill can be a Money bill even while

containing other provisions. Gupta argued:

“This article is a prototype of
Section 37
of the Government of
India Act which says that a Bill or amendment providing for
imposing or increasing a tax or borrowing money, etc. shall
not be introduced or moved except on the recommendation of
the Governor-General. This means that the whole Bill need
not be a money Bill: it may contain other provisions, but if
there is any provision about taxation or borrowing, etc. It will
come under this
Section 37
, and the recommendation of the
Governor-General is necessary. Now
article 90
says that a
Bill shall be deemed to be a money Bill if it contains only
provisions dealing with the imposition, regulation, etc., of
any tax or the borrowing of money, etc. This can mean
that if there is a Bill which has other provisions and also
a provision about taxation or borrowing etc., it will not
become a money Bill. If that is the intention I have
nothing to say; but that if that is not the intention I must
say the word "only" is dangerous, because if the Bill
does all these things and at the same time does
something else also it will not be a money Bill. I do not
know what the intention of the Drafting Committee is but I
think this aspect of the article should be borne in mind.”161
(Emphasis supplied)

Another member Naziruddin Ahmad also emphasized on the deletion of the

word “only”. The concern of these two members was that the word “only”

restricts the scope of a Bill being passed as a Money Bill. Their apprehension

was that if a Bill has other provisions which are unrelated to the clauses

mentioned in draft
Article 90
, the Bill would not qualify to be a Money Bill in

view of the word “only”. The amendment suggested by these members was

listed to be put to vote on a later date. The amendment was rejected when it

was put to vote on 8 June 1949. The framers of the Indian Constitution

consciously rejected the said amendment.

161 Constituent Assembly Debates (20 May 1949)
PART E

98 When a Bill is listed as a Money Bill, it takes away the power of the

Rajya Sabha to reject or amend the Bill. The Rajya Sabha can only make

suggestions to a Money Bill, which are not binding on the Lok Sabha. The

Constitution makers would have been aware about the repercussions of a Bill

being introduced as a Money Bill. As the role of the Rajya Sabha is limited in

the context of Money Bills, the scope of what constitutes a Money Bill was

restricted by adopting the word “only” in Draft
Article 90.
A Bill to be a Money

Bill must not contain any provision which falls outside clauses (a) to (g) of

Article 110(1).
The Constitution has carefully used the expression “dealing

with” in
Article 110 (1)
and not the wider legislative form “related to”. A Bill,

which has both − certain provisions which fall within sub-clauses (a) to (g) of

Article 110(1)
and other provisions which fall outside will not qualify to be a

Money Bill. It is for this reason that there cannot also be any issue of the

severability of the provisions of a Bill, which has certain provisions relating to

sub-clauses (a) to (g) of
Article 110(1)
, while also containing provisions which

fall beyond. Any other interpretation would result in rewriting the Constitution.

If a Bill contains provisions which fall outside sub-clauses (a) to (g), it is not a

Money Bill. The Rajya Sabha is entitled as part of its constitutional function to

legislative participation. The entirety of the Bill cannot be regarded as a Money

Bill, once it contains any matters which fall beyond sub-clauses (a) to (g).

Once that is the position, it could be impossible to sever those parts which fall

within sub-clauses (a) to (g) and those that lie outside.
The presence of

matters which travel beyond sub-clauses (a) to (g) has consequences in terms
PART E

of the nature of the Bill and the legislative participation of the Rajya Sabha. If

the constitutional function of the Rajya Sabha has been denuded on the

hypothesis that this Bill was a Money Bill, the consequence of a finding in

judicial review that the Bill is not a Money Bill must follow. Any other

construction will reduce bicameralism to an illusion.

This interpretation is also supported by the judgment of a Bench of seven

judges of this Court in
Krishna Kumar Singh v State of Bihar162
, where it

held that the ordinance making power conferred upon the President and the

Governors is limited by the requirements set out by
Articles 123
and
213.
This

Court had held:

“59…The constitutional conferment of a power to frame
ordinances is in deviation of the normal mode of legislation
which takes place through the elected bodies comprising of
Parliament and the state legislatures. Such a deviation is
permitted by the Constitution to enable the President and
Governors to enact ordinances which have the force and
effect of law simply because of the existence of
circumstances which can brook no delay in the formulation of
legislation. In a parliamentary democracy, the government is
responsible collectively to the elected legislature. The
subsistence of a government depends on the continued
confidence of the legislature. The ordinance making power
is subject to the control of the legislature over the
executive. The accountability of the executive to the
legislature is symbolised by the manner in which the
Constitution has subjected the ordinance making power
to legislative authority. This, the Constitution achieves by
the requirements of
Article 213...
”163 (Emphasis supplied)

99 The authority of the Lok Sabha to pass a Money Bill is based on the

requirements set out under
Article 110.
The framers of the Indian Constitution

162 (2017) 3 SCC 1
163 Ibid, at page 61
PART E

deliberately restricted the scope of
Article 110(1)
to ensure that the provision

is not an avenue to supersede the authority of the Rajya Sabha. The intention

of the Constitution makers is clear. The Lok Sabha cannot introduce and pass

a legislative measure in the garb of a Money Bill, which could otherwise have

been amended or rejected by the Rajya Sabha. Bicameralism is a founding

value of our democracy. It is a part of the basic structure of the Constitution.

Introduction and passing of a Bill as a Money Bill, which does not qualify to be

a Money Bill under
Article 110(1)
of the Constitution, is plainly

unconstitutional. The Lok Sabha is not entrusted with the entire authority of

Parliament. The Lok Sabha, the Rajya Sabha and the President together

constitute the Parliament of India. The Lok Sabha is a body of elected

representatives and represents the aspirations of citizens. Yet, like every

constitutional institution, it is part of this basic structure of the Constitution. A

political party or a coalition which holds the majority in the Lok Sabha cannot

subvert the working of the Constitution, against which Dr B R Ambedkar had

warned164 in the Constituent Assembly. A ruling government has to work

within constitutional parameters and has to abide by constitutional morality.

100 The Constitution of India is not a mere parchment of paper. It was

written with the vision of those who gave blood and sweat to freedom: political

personalities, social reformers and constitution framers. It symbolises a faith in

institutions, justice and good governance. That vision cannot be belied. The

164 Constituent Assembly Debates (4 November, 1948). Dr Ambedkar had remarked: “… it is perfectly possible to
pervert the Constitution, without changing its form by merely changing the form of the administration and to
make it inconsistent and opposed to the spirit of the Constitution.”
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Speaker of the Lok Sabha has an onerous constitutional duty to ensure that a

Bill, which is not a Money Bill is not passed as a Money Bill. The Speaker of

the Lok Sabha, the Chairman of the Rajya Sabha, the members of the Lok

Sabha and the Rajya Sabha, and the President need to work in constitutional

solidarity to ensure that no provision of the Constitution is diluted or subverted.

101 The Aadhaar Act was passed as a Money Bill. The provisions of the Act

need to be analysed to determine whether the Act is a Money Bill.

The Preamble of the Act states that it is:

“
An Act
to provide for, as a good governance, efficient,
transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such
individuals and for matters connected therewith or incidental
thereto.”

The Preamble focuses on the delivery of subsidies, benefits and services for

which the expenditure is borne from the Consolidated Fund of India. But the

essential issue is whether the Act confines itself to matters which fall within

the ambit of
Article 110.
Section 3
entitles every resident165 in India to obtain an Aadhaar

number by submitting his or her demographic information, by undergoing the

process of enrolment.
Section 2(m)
defines “enrolment” as the process to
Section 2(v)
provides: “resident” means an individual who has resided in India for a period or periods
amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding
the date of application for enrolment.
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collect demographic and biometric information from individuals by the enrolling

agencies for the purpose of issuing Aadhaar numbers to such individuals.

After receiving the demographic and biometric information of the individual,

the Unique Identification Authority of India (UIDAI) would verify the information

and shall issue an Aadhaar number to such an individual.166
Section 4(3)

provides that the Aadhaar number may be accepted as proof of identity for

“any purpose”.
Section 5
requires UIDAI to take special measures to issue

Aadhaar numbers to “women, children, senior citizens, persons with disability,

unskilled and unorganised workers, nomadic tribes or to such other persons

who do not have any permanent dwelling house and such other categories of

individuals”. Under
Section 6
, UIDAI may require Aadhaar number holders to

update their demographic information and biometric information, from time to

time so as to ensure continued accuracy of their information in the Central

Identities Data Repository (“CIDR”). The Aadhaar Act defines CIDR as a

centralised database containing all Aadhaar numbers issued to Aadhaar

number holders along with the corresponding demographic information and

biometric information of such individuals and other related information.167
Section 7
requires proof of an Aadhaar number as a necessary

condition to avail subsidies, benefits and services, for which the expenditure is

borne from the Consolidated Fund of India. The proviso to
Section 7
states

that if an Aadhaar number is not assigned to an individual, the individual shall

166 Section 3(3), Aadhaar Act
167 Section 2(h), Aadhaar Act
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be offered alternate and viable means of identification for delivery of the

subsidy, benefit or service.
Section 8(1)
requires UIDAI to perform

authentication168 of the Aadhaar number of an Aadhaar number holder, in

relation to his or her biometric information or demographic information

submitted by any requesting entity169. Under
Section 8(2)
, a requesting entity

is required to obtain the consent of an individual before collecting his or her

identity information for the purposes of authentication. The requesting entity

must ensure that the identity information of an individual collected by it is only

used for submission to the CIDR for authentication.
Section 8(3)
requires a

requesting entity to inform the individual submitting identity information for

authentication certain details with respect to authentication.
Chapter IV of the Act
deals with UIDAI.
Section 11
establishes UIDAI as

the body responsible for the processes of enrolment and authentication and

for performing functions assigned to it under the Act.
The Act
provides for the

composition of UIDAI170, qualifications of its members171, terms of office172 of

its chairperson and members, their removal173 and functions174. Section 23,

which deals with the powers and functions of UIDAI, authorizes it to develop

the policy, procedure and systems for issuing Aadhaar numbers to individuals

168 Section 2(c) provides: “authentication” means the process by which the Aadhaar number alongwith
demographic information or biometric information of an individual is submitted to the Central Identities Data
Repository for its verification and such Repository verifies the correctness, or the lack thereof, on the basis of
information available with it.
Section 2 (u)
provides: “requesting entity” means an agency or person that submits the Aadhaar number, and

demographic information or biometric information, of an individual to the Central Identities Data Repository for
authentication
170 Section 12, Aadhaar Act
171 Section 13, Aadhaar Act
172 Section 14, Aadhaar Act
173 Section 15, Aadhaar Act
174 Section 17, Aadhaar Act
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and to perform authentication.
Section 23(h)
states that UIDAI has the power

to specify the “manner of use of Aadhaar numbers” for the purposes of

providing or availing of various subsidies, benefits, services and “other

purposes” for which Aadhaar numbers may be used. Under
Section 23(3)
,

UIDAI may enter into a Memorandum of Understanding or agreement with the

Central Government or State Governments or Union territories or other

agencies for the purpose of performing any of the functions in relation to

collecting, storing, securing or processing of information or delivery of

Aadhaar numbers to individuals or performing authentication.

105 Chapter V deals with grants, accounts and audit and annual reports of

UIDAI.
Section 25
provides that the fees or revenue collected by UIDAI shall

be credited to the Consolidated Fund of India. Chapter VI deals with protection

of information collected from individuals for authentication.
Section 28(3)

requires UIDAI to take all necessary measures to ensure that the information

in its possession or control, including information stored in the CIDR, is

secured and protected against access, use or disclosure (not permitted under

the Act or the regulations), and against accidental or intentional destruction,

loss or damage.
Section 29
imposes restrictions on sharing of core biometric

information, collected or created under the Act.
Section 32(2)
entitles every

Aadhaar number holder to obtain his or her authentication record in such

manner as may be specified by regulations.
Section 33
provides for disclosure

of information pursuant to a court order or in the interest of national security.
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Chapter VII of the Act
(
Sections 34
to
) provides for offences and

penalties.
Section 34
provides for penalty for impersonation at the time of

enrolment.
Section 35
provides a penalty for impersonation of an Aadhaar

number holder by changing demographic or biometric information. Under

Section 37
, a penalty for disclosing identity information (which was collected in

the course of enrolment or authentication) is provided.
Section 38
provides a

penalty for unauthorised access to the CIDR.
Section 39
imposes a penalty for

tampering with data in the CIDR. Under
Sections 40
and
, a penalty has

been provided for requesting entities and enrolment agencies, in case they act

in contravention of the obligations imposed upon them under the Act.
Section
indicates that the provisions of the Act would apply to any offence or

contravention committed outside India by any person, irrespective of

nationality.
Section 48
empowers the Central Government to supersede UIDAI in

certain situations.
Section 50
states that UIDAI is bound by directions on

questions of policy given by the Central Government.
Section 51
authorizes

the UIDAI to delegate to any member, officer of the Authority or any other

person, such of its powers and functions (except the power under
section 54
)

as it may deem necessary.
Section 53
empowers the Central Government to

make rules to carry out the provisions of the Act. Under
Section 54(2)(m)
,

UIDAI can make regulations providing the manner of use of Aadhaar numbers

for the purposes of providing or availing of various subsidies, benefits,
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services and “other purposes” for which Aadhaar numbers may be used.

Section 57
authorizes the State or any body corporate or person to use an

Aadhaar number for establishing the identity of an individual “for any purpose”,

subject to the procedure and obligations under
Section 8
and
Chapter VI of

the Act
.
Section 59
seeks to validate the actions taken by the Central

Government pursuant to the notifications dated 28 January 2009 and 12

September 2015, and prior to the enactment of the Aadhaar Act.

This broad description of the provisions of the Aadhaar Act indicates that the

Act creates a framework for obtaining a unique identity number - the Aadhaar

number - by submitting demographic and biometric information and

undergoing the process of enrolment and authentication.
The Act
indicates

that the Aadhaar number may be accepted as proof of identity for any

purpose.
The Act
, in other words, creates a platform for one pan-India and

nationally acceptable identity. It creates a central database (CIDR) for storage

of identity information collected from individuals.
Sections 3
to
specifically

deal with the process of enrolment.
Section 3
entitles every resident to hold

an Aadhaar number.
Section 4(3)
states that the Aadhaar number so

generated may be used as a proof of identity “for any purpose”. The primary

object of the legislation is to create one national identity for every resident. It

seeks to do so by legislating a process for collecting demographic and

biometric information.
The Act
has created an authority to oversee the

fulfilment of its provisions. In its primary focus and initiatives, the law traverses
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beyond the territory reserved by
Article 110
for a Money Bill.
Sections 7
to
deal with authentication of information submitted at the time of enrolment.

Section 8
creates obligations on requesting entities to ensure that consent

is obtained from individuals before collecting their identity information and

that the identity information of such individual is only used for submission to

the CIDR for authentication.
Sections 11
to
create a statutory authority

(UIDAI) and assign responsibilities to it for the processes of enrolment and

authentication and to discharge other functions assigned to it under the Act,

including developing the policy, procedure and systems for issuing Aadhaar

numbers to individuals.
Section 23(2)(h)
provides that apart from availing of

various subsidies, benefits, and services, Aadhaar numbers may be used for

“other purposes”.
Sections 28
to
deal with protection of information, and

provide for security and confidentiality of identity information and restrictions

on sharing of information.
Section 28
imposes obligations on the UIDAI to

ensure the security and confidentiality of identity information and

authentication records of individuals, which are in its possession or control,

including information stored in CIDR. Disclosure of identity information and

authentication records can be made under
Section 33
, pursuant to a court

order (not below the rank of District Judge) or in the interest of national

security in pursuance of a direction of an officer (not below the rank of Joint

Secretary to the Government of India).
Sections 34
to
deal with substantive

offences and penalties created under the Act.
Sections 54(2)(m)
states that

regulations can be made by UIDAI specifying the manner of use of Aadhaar
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numbers for the purposes of providing or availing of various subsidies,

benefits, services and “other purposes” for which Aadhaar numbers may be

used.
Section 57
authorizes the use of Aadhaar number by anyone (whether

by the State or any body corporate or person under law or contract) for

establishing the identity of an individual “for any purpose”.
Section 7
makes the use of the Aadhaar number mandatory for availing

subsidies, benefits or services, for which expenditure is incurred from the

Consolidated Fund of India. The scheme of the Act deals with several aspects

relating to the unique identity number. The unique identity is capable of being

used for multiple purposes: availing benefits, subsidies and services, for

which expenses are incurred from the Consolidated Fund of India, is just one

purpose, among others. The Preamble to the Aadhaar Act indicates that the

main objective was to achieve an efficient and “targeted delivery of subsidies,

benefits and services, the expenditure for which is incurred from the

Consolidated Fund of India”. The substantive provisions of the Act are,

however, not confined to the object specified in the Preamble. Indeed, they

travel far beyond the boundaries of a money bill under
Article 110(1).
The

enrolment on the basis of demographic and biometric information, generation

of Aadhaar number, obtaining consent of individuals before collecting their

individual information, creation of a statutory authority to implement and

supervise the process, protection of information collected during the process,

disclosure of information in certain circumstances, creation of offences and
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penalties for disclosure or loss of information, and the use of the Aadhaar

number for any purpose lie outside the ambit of
Article 110.
These themes are

also not incidental to any of the matters covered by sub-clauses (a) to (f) of

Article 110(1).
The provisions of
Section 57
which allow the use of an Aadhaar

number by bodies corporate or private parties for any purpose do not fall

within the ambit of
Article 110.
The legal framework of the Aadhaar Act

creates substantive obligations and liabilities which have the capability of

impacting on the fundamental rights of residents.

109 A Bill, to be a Money Bill, must contain only provisions which fall within

the ambit of the matters mentioned in
Article 110.

Section 7
of the Act allows

the Aadhaar number to be made mandatory for availing of services, benefits

and subsidies for which expenditure is incurred from the Consolidated Fund of

India. Under clause (e) of
Article 110(1)
the money bill must deal with the

declaring of any expenditure to be expenditure charged on the Consolidated

Fund of India (or increasing the amount of expenditure). Significantly,
Section
does not declare the expenditure incurred on services, benefits or subsidies

to be a charge on the Consolidated Fund of India. What
Section 7
does is to

enact a provision allowing for Aadhaar to be made mandatory, in the case of

services, benefits or subsidies which are charged to the Consolidated Fund.

Section 7
does not declare them to be a charge on the Consolidated Fund. It

provides that in the case of services, benefits or subsidies which are already

charged to the Consolidated Fund, Aadhaar can be made mandatory to avail
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of them.
Section 7
, in other words, is a provision for imposing a requirement of

authentication and not declaring any expenditure to be a charge on the

Consolidated Fund of India. Hence, even
Section 7
is not within the ambit of

Article 110(1)(e).
However, even if
Section 7
were to be held to be referable to

Article 110
, that does not apply to the other provisions of the Act. The other

provisions of the Act do not in any event fall within the ambit of
Article 110(1).

Introducing one provision –
Section 7
– does not render the entirety of the Act

a Money Bill where its other provisions travel beyond the parameters set out in

Article 110.

Section 57
of the Act in particular (which creates a platform for the

use of the Aadhaar number by the private entities) can by no stretch of logic

be covered under
Article 110(1).
The other provisions of the Act do not deal

with that which has been provided under Sub-clauses (a) to (g) of
Article 110.

As regards the ‘incidental’ provision under
Article 110(1)(g)
, the provisions of

the Aadhaar Act are not “incidental to any of the matters specified in sub-

clauses (a) to (f)”. Even if it is assumed that there is one provision (
Section 7
)

which is relatable to sub-clause (e) of
Article 110(1)
, the other provisions of

the Act are unrelated to
Article 110(1).

110 This Court must also advert to the legislative history prior to the

enactment of the Aadhaar Act. An attempt to provide a legislative framework

governing the Aadhaar project was first made by introducing the National

Identification Authority of India Bill, 2010 (“NIA Bill”). The NIA Bill was
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introduced in the Rajya Sabha on 3 December 2010. The Preamble of the Bill

indicated its purpose:

“A Bill to provide for the establishment of the National
Identification Authority of India for the purpose of issuing
identification numbers to individuals residing in India and to
certain other classes of individuals and manner of
authentication of such individuals to facilitate access to
benefits and services to such individuals to which they are
entitled and for matters connected therewith or incidental
thereto.”

The main objective of the Bill was to establish the National Identification

Authority of India to issue unique identification numbers (called ‘Aadhaar’) to

residents of India and to any other category of people for the purpose of

facilitating access to benefits and services. Chapter II (Clauses 3 to 10) of the

Bill dealt with Aadhaar numbers. Clause 3 of the Bill entitled every resident to

obtain an Aadhaar number on providing demographic and biometric

information to the Authority in such manner as may be specified. Clause 4(3)

stated that an Aadhaar number shall be accepted, subject to authentication,

as proof of identity of the Aadhaar number holder. Chapter III (Clauses 11 to

23) dealt with the National Identification Authority of India. Clause 11 provided

for establishment of the Authority by the Central Government. Clause 23

empowered the Authority to develop the policy, procedure and systems for

issuing Aadhaar numbers to residents and to perform authentication. Clause

23(2)(h) stated that the Authority may specify the usage and applicability of

the Aadhaar number for delivery of various benefits and services.

Establishing, operating and maintaining of the Central Identities Data

Repository (CIDR) by the Authority was provided under Clause 23(2)(j).
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Chapter IV (Clauses 24 to 27) provide for grants, accounts and audit and

annual reports related to the Authority. Clause 25 stated that the fees or

revenue collected by the Authority shall be credited to the Consolidated Fund

of India and the entire amount would be transferred to the Authority. Chapter

V (Clauses 28 and 29) dealt with creation of an Identity Review Committee

and its functions. The functions of the Review Committee included

ascertaining the extent and pattern of usage of Aadhaar numbers across the

country and preparing a report annually along with recommendations. Chapter

VI (Clauses 30 to 33) dealt with the protection of individual identity information

and authentication records. Clause 30(1) required the Authority to ensure the

security and confidentiality of identity information and authentication records of

individuals. Clause 30(2) required the Authority to take measures (including

security safeguards) to ensure that the information in the possession or

control of the Authority (including information stored in the Central Identities

Data Repository) is secured and protected against any loss or unauthorised

access or use or unauthorised disclosure. Clause 33 stated that individual

information may be disclosed pursuant a court order or in the interest of

national security. Chapter VII (Clauses 34 to 46) created offences and

penalties under the law. Clause 47 empowered the Central Government to

supersede the Authority. Clause 50 authorized the Authority to delegate to any

Member, officer of the Authority or any other person such of its powers and

functions (except the power under Clause 53). Clause 57 sought to validate
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actions taken by the Central Government under the Planning Commission’s

notification of 2009.

111 Since the UID programme involved complex issues, the NIA Bill was

referred, on 10 December 2010, to the Standing Committee on Finance,

chaired by Mr Yashwant Sinha, for examination and report. The Standing

Committee comprised of 21 members from the Lok Sabha and 10 members

from the Rajya Sabha. The Standing Committee submitted its Report175 on 11

December 2011. The Report raised several objections to the Bill, which

included those summarised below:

(i) Since law making was underway, the bill being pending, any executive

action is as violative of Parliament’s prerogatives as promulgation of an

ordinance while one of the Houses of Parliament is in session;

(ii) While the country is facing a serious problem of illegal immigrants and

infiltration from across the borders, the National Identification Authority of

India Bill, 2010 proposes to entitle every resident to obtain an Aadhaar

number, apart from entitling such other category of individuals as may be

notified from time to time. This will, it is apprehended, make even illegal

immigrants entitled for an Aadhaar number;

(iii) The issue of a unique identification number to individuals residing in India

and other classes of individuals under the Unique Identification (UID)

175Forty-Second Report, Standing Committee on Finance (2011-12), available at
http://www.prsindia.org/uploads/media/UID/uid%20report.pdf
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Scheme is riddled with serious lacunae and concern areas. For example,

the full or near full coverage of marginalized sections for issuing Aadhaar

numbers could not be achieved mainly due to two reasons viz. (a) the

UIDAI doesn’t have the statistical data relating to them; and (b) estimated

failure of biometrics is expected to be as high as 15% because a large

chunk of population is dependent on manual labour;

(iv) Despite the presence of serious differences of opinion within the

Government on the UID scheme, the scheme continues to be

implemented in an overbearing manner without regard to legalities and

other social consequences;

(v) The UID scheme lacks clarity on many issues including even the basic

purpose of issuing an “Aadhaar” number. Although the scheme claims

that obtaining an Aadhaar number is voluntary, an apprehension has

developed in the minds of people that in future, services / benefits

including food entitlements would be denied in case they do not an have

an Aadhaar number;

(vi) It is also not clear as to whether possession of an Aadhaar number would

be made mandatory in future for availing of benefits and services. Even if

the Aadhaar number links entitlements to targeted beneficiaries, it may

not ensure that beneficiaries have been correctly identified. Thus, the

present problem of proper identification would persist;
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(vii) Though there are significant differences between the identity system of

other countries and the UID scheme, yet there are lessons from the

global experience to be learnt before proceeding with the implementation

of the UID scheme, which the Ministry of Planning has ignored

completely;

(viii) Considering the huge database and possibility of misuse of information,

the enactment of a national data protection law is a pre-requisite for any

law that deals with large scale collection of information from individuals

and its linkages across separate databases. In the absence of data

protection legislation, it would be difficult to deal with issues like access to

and misuse of personal information, surveillance, profiling, linking and

matching of data bases and securing confidentiality of information;

(ix) The Standing Committee strongly disapproved of the hasty manner in

which the UID scheme was approved. Unlike many other schemes /

projects, no comprehensive feasibility study, which ought to have been

done before approving such an expensive scheme, was done involving all

aspects of the UID scheme including a cost-benefit analysis, comparative

costs of Aadhaar numbers and various existing forms of identity, financial

implications and prevention of identity theft, for example, using hologram

enabled ration cards to eliminate fake and duplicate beneficiaries;

(x) The UID scheme may end up being dependent on private agencies,

despite contractual agreements made by the UIDAI with several private
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vendors. As a result, the beneficiaries may be forced to pay over and

above the charges to be prescribed by the UIDAI for availing of benefits

and services, which are now available free of cost;

(xi) The scheme is full of uncertainty in technology as a complex scheme is

built up on untested and unreliable technology and on several

assumptions. It is also not known as to whether the proof of concept

studies and assessment studies undertaken by the UIDAI have explored

the possibilities of maintaining accuracy to a large level of enrolment of

1.2 billion people; and

(xii) The Committee felt that entrusting the responsibility of verification of

information of individuals to the registrars to ensure that only genuine

residents get enrolled into the system may have far reaching

consequences for national security. Given the limitation of any

mechanism such as a security audit by an appropriate agency that would

be set up for verifying the information, it is not evident as to whether a

complete verification of information of all Aadhaar number holders is

practically feasible; and whether it would deliver the intended results

without compromising national security.

With these apprehensions about the UID scheme, the Standing Committee on

Finance categorically conveyed that the National Identification Authority of

India Bill, 2010 was not acceptable. The Committee urged the Government to
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reconsider and review the UID scheme and the proposals contained in the Bill

and bring forth a fresh legislation before Parliament. Ultimately, the NIA Bill

was withdrawn from the Rajya Sabha on 3 March, 2016.

112 A comparison of the Aadhaar Act 2016 and NIA Bill 2010 reveals that

both have a common objective and framework − establishing a system of

unique identity numbers, which would be implemented and monitored by a

statutory authority. The NIA Bill was not a Money Bill. It was never passed by

the Rajya Sabha. The Bill was scrutinized by a Standing Committee on

Finance, which had 10 members from the Rajya Sabha and 21 from the Lok

Sabha. The NIA Bill did not contain a provision, similar to Section 7 of the

Aadhaar Act. Yet, as discussed earlier, the presence of
Section 7
does not

make the Aadhaar Act a Money Bill. Introducing the Aadhaar Act as a Money

Bill deprived the Rajya Sabha of its power to reject or amend the Bill. Since

the Aadhaar Act in its current form was introduced as a Money Bill in the Lok

Sabha, the Rajya Sabha had no option other than of making

recommendations to the Bill. The recommendations made by the Rajya Sabha

(which also included deletion of
Section 57
) were rejected by the Lok Sabha.

The legislative history is a clear pointer to the fact that the subsequent

passage of the Bill as a Money Bill by-passed the constitutional authority of

the Rajya Sabha. The Rajya Sabha was deprived of its legitimate

constitutional role by the passage of the Bill as a Money Bill in the Lok Sabha.
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113 The Court must also address the contention of the Respondents that

the Aadhaar Act is “in pith and substance” a Money Bill. The learned Attorney

General for India has submitted that though the Act has ancillary provisions,

its main objective is the delivery of subsidies, benefits and services flowing out

of the Consolidated Fund of India and that the other provisions are related to

the main purpose of the Act which was giving subsidies and benefits. It has

been submitted that the real test to be applied in the present dispute is the

doctrine of pith and substance.

114 This Court has applied the doctrine of pith and substance when the

legislative competence of a legislature to enact a law is challenged. The

doctrine is applied to evaluate whether an enactment which is challenged falls

within an entry in one of the three Lists in the Seventh Schedule over which

the legislature has competence under
Article 246
of the Constitution. The

Seventh Schedule to the Constitution distributes legislative powers between

the Union and the States. When a law enacted by a legislature is challenged

on the ground of a lack of legislative competence, the doctrine of pith and

substance is invoked. Under the doctrine, the law will be valid if in substance,

it falls within the ambit of a legislative entry on which the legislature is

competent to enact a law, even if it incidentally trenches on a legislative entry

in a separate list. The constitutional rationale for the application of this
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doctrine has been explained in a Constitution Bench decision of this Court in

A S Krishna v State of Madras176
:

“8…But then, it must be remembered that we are construing a
federal Constitution. It is of the essence of such a
Constitution that there should be a distribution of the
legislative powers of the Federation between the Centre
and the Provinces. The scheme of distribution has varied
with different Constitutions, but even when the Constitution
enumerates elaborately the topics on which the Centre and
the States could legislate, some overlapping of the fields of
legislation is inevitable. The British North America Act, 1867,
which established a federal Constitution for Canada,
enumerated in
Sections 91
and
the topics on which the
Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be
fairly full and comprehensive, it was not long before it
was found that the topics enumerated in the two sections
overlapped, and the Privy Council had time and again to
pass on the constitutionality of laws made by the
Dominion and Provincial legislatures. It was in this
situation that the Privy Council evolved the doctrine, that
for deciding whether an impugned legislation was intra
vires, regard must be had to its pith and substance. That
is to say, if a statute is found in substance to relate to a
topic within the competence of the legislature, it should
be held to be intra vires, even though it might incidentally
trench on topics not within its legislative competence...”
(Emphasis supplied)

The decision of a three judge Bench of this Court in
State of Maharashtra v

Bharat Shanti Lal Shah177
has summarized the process of reasoning which

must be followed by the Court while applying the doctrine of pith and

substance. The Court held:

“43…If there is a challenge to the legislative competence the
courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In this
process, it is necessary for the courts to go into and
examine the true character of the enactment, its object,
its scope and effect to find out whether the enactment in

176 1957 SCR 399
177(2008) 13 SCC 5
PART E

question is genuinely referable to the field of legislation
allotted to the respective Legislature under the
constitutional scheme. Where a challenge is made to the
constitutional validity of a particular State Act with reference
to a subject mentioned in any entry in List I, the court has to
look to the substance of the State Act and on such analysis
and examination, if it is found that in the pith and substance, it
falls under an entry in the State List but there is only an
incidental encroachment on topics in the Union List, the State
Act would not become invalid merely because there is
incidental encroachment on any of the topics in the Union
List.”178 (Emphasis supplied )

115 The doctrine of pith and substance is mainly used to examine whether

the legislature has the competence to enact a law with regard to any of the

three Lists provided under the Constitution. It cannot be applied to sustain as

a Money Bill, a Bill which travels beyond the constitutional boundaries set out

by
Article 110
Whether a Bill is validly passed as a Money Bill has nothing to

do with the legislative competence of the legislature under
Article 246
of the

Constitution. Whether a Bill is a Money Bill has to be tested within the

boundaries of
Article 110.
The submission of the Attorney General boils down

to this: ‘ignore the expression “only provisions dealing with all or any of the

following matters” and hold the Bill to be a Money Bill by treating
Section 7
as

its dominant provision’. This cannot be accepted. This would ignore the

express and clear language of
Article 110.
As we have emphasised earlier,

the submission of the Attorney General requires the court to transpose the

word “only” from its present position to a place before “if”. That would be to

rewrite the Constitution to mean that a Bill would be a Money Bill if it

contained some provisions which fall under sub-clauses (a) to (g). The

178 Ibid, at page 21
PART E

Constitution says to the contrary: a Bill is a Money Bill if it contains “only

provisions” dealing with one or more of the matters set out in sub-clauses (a)

to (g). Looked at in another way, all the provisions of the Aadhaar Act (apart

from
Section 7
) cannot be read as incidental to
Section 7
. Such a view is

belied by a plain reading of the Act, as indicated earlier. Moreover, we have

also indicated reasons why even
Section 7
cannot be held to be referable to

Article 110.

Section 7
does not deal with the declaring of any expenditure as

expenditure charged to the Consolidated Fund.
Section 7
allows for making

Aadhaar mandatory for availing of subsidies, benefits or services the

expenditure incurred on which is charged to the Consolidate Fund.
Section 7

does not charge any expenditure to the Consolidated Fund. It deals with

making Aadhaar mandatory.

In support of their contention, the Respondents have also relied upon a two

judge Bench decision in
Union of India v Shah Goverdhan L Kabra

Teachers’ College179
to submit that the doctrine of pith and substance can be

used in any context. The Court held:

“7. It is further a well-settled principle that entries in the
different lists should be read together without giving a narrow
meaning to any of them. Power of the Parliament as well as
the State legislature are expressed in precise and definite
terms. While an entry is to be given its widest meaning but it
cannot be so interpreted as to over-ride another entry or
make another entry meaningless and in case of an apparent
conflict between different entries, it is the duty of the court to
reconcile them. When it appears to the Court that there is
apparent overlapping between the two entries the doctrine of
"pith and substance" has to be applied to find out the true
nature of a legislation and the entry with which it would fall. In

179 (2002) 8 SCC 228
PART E

case of conflict between entries in List I and List II, the same
has to be decided by application of the principle of "pith and
substance". The doctrine of "pith and substance" means
that if an enactment substantially falls within the powers
expressly conferred by the Constitution upon the
legislature which enacted it, it cannot be held to be
invalid, merely because it incidentally encroaches on
matters assigned to another legislature. When a law is
impugned as being ultra-vires of the legislative competence,
what is required to be ascertained is the true character of the
legislation. If on such an examination it is found that the
legislation is in substance one on a matter assigned to the
legislature then it must be held to be valid in its entirety even
though it might incidentally trench on matters which are
beyond its competence. In order to examine the true
character of the enactment, the entire Act, its object and
scope and effect, is required to be gone into. The question of
invasion into the territory of another legislation is to be
determined not by degree but by substance. The doctrine of
"pith and substance' has to be applied not only in cases
of conflict between the powers of two legislatures but in
any case where the question arises whether a legislation
is covered by particular legislative power in exercise of
which it is purported to be made.”180 (Emphasis supplied)

The decision is of no assistance to the submission in the present dispute. The

observations made by the Court are in relation to the power to legislate under

Article 246
of the Constitution. It is unconnected to the question of a Money

Bill. Therefore, the argument that the Aadhaar Act is “in pith and substance” a

Money Bill is rejected.

116 Introducing the Aadhaar Act as a Money Bill has bypassed the

constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act

as a Money Bill is an abuse of the constitutional process. It deprived the Rajya

Sabha from altering the provisions of the Bill by carrying out amendments. On

the touchstone of the provisions of
Article 110
, the Bill could not have been
180 Ibid, at pages 233-234
PART E

certified as a Money Bill. In his last address to the Constituent Assembly on

25 November 1949, Dr B R Ambedkar had stated:

“The working of a Constitution does not depend wholly upon
the nature of the Constitution. The Constitution can provide
only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working
of those organs of the State depends are the people and the
political parties they will set up as their instruments to carry
out their wishes and their politics.”181

117 The Rajya Sabha has an important role in the making of laws.

Superseding the authority of the Rajya Sabha is in conflict with the

constitutional scheme and the legitimacy of democratic institutions. It

constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when

it does not qualify for it, damages the delicate balance of bicameralism which

is a part of the basic structure of the Constitution. The ruling party in power

may not command a majority in the Rajya Sabha. But the legislative role of

that legislative body cannot be obviated by legislating a Bill which is not a

Money Bill as a Money Bill. That would constitute a subterfuge, something

which a constitutional court cannot countenance. Differences in a democratic

polity have to be resolved by dialogue and accommodation. Differences with

another constitutional institution cannot be resolved by the simple expedient of

ignoring it. It may be politically expedient to do so. But it is constitutionally

impermissible. This debasement of a democratic institution cannot be allowed

to pass. Institutions are crucial to democracy. Debasing them can only cause

a peril to democratic structures.

181 Constituent Assembly (25 November 1949)
PART F

The Act
thus fails to qualify as a Money Bill under
Article 110
of the

Constitution. Since the Act was passed as a Money Bill, even though it does

not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is

in violation of
Article 110
and therefore is liable to be declared

unconstitutional.

F Biometrics, Privacy and Aadhaar

“Any situation that allows an interaction between man and
machine is capable of incorporating biometrics”182

118 The term ‘biometric’ is derived from the Greek nouns ‘βίος’ (life) and

‘μέτρον’ (measure) and means ‘measurement of living species’. 183 Biometric

technologies imply that “unique or distinctive human characteristics of a

person are collected, measured and stored for the automated verification of a

claim made by that person for the identification of that person.”184 These

systems thus identify or verify the identity or a claim of persons on the basis of

the automated measurement and analysis of their biological traits (such as

fingerprints, face and iris) or behavioral characteristics (such as signature and

voice).

182 Gary Roethenbaugh, (cited in A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner,
Ontario, Canada, 1999, page 11, available at http://www.ipc.on.ca/images/Resources/pri- biom.pdf
183 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,

Springer (2013)
184 Ibid.
PART F

119 The idea that parts of our body can be used to identify our unique

selves is not new. Prints of hand, foot and finger have been used since

ancient times because of their unique characteristics. Before the advent of

biometric systems, however, human characteristics were compared in a

manual way. Today’s biometric systems hence differ from manual verification

methods in that technology allows for automated comparison of human

characteristic(s) in place of a regime of manual verification that existed earlier.

It must be understood that biometric systems themselves do not identify

individuals. For identification, additional information which is already stored in

databases is needed since biometric systems can only compare information

which is already submitted.185 Integral to such a system is the matching of a

claim of identity with biometric data collected and stored earlier.

In general, biometric applications are referred to as systems which allow one

to authenticate claims. The verb ‘to authenticate’ can be described as ‘making

authentic, legally valid’.186 Originally, fingerprints were the most commonly

known and used biometric traits, but with improvements in technology,

multiple sources of biometric information have emerged. These include data

related to facial features, iris, voice, hand geometry and DNA. Each trait is

collected using different technologies and can be used for different purposes

185 Ibid.

186 Ibid.
PART F

separately or in combination, to strengthen and improve the accuracy and

reliability of the identification process.187

In general, biometric information is developed by processing extractable key

features of an individual into an ‘electronic digital template’, which is then

encrypted and stored in a database. When an individual connects with the

system to verify his/her identity for any purpose, the information is used by

matching the ‘electronic digital template’ saved with the biometric information

presented, based on which comparison, the individual’s identity will be

confirmed or rejected. The intended purpose of biometric technology is to

confirm the identity of individuals through a “one to one” identification check.

This system compares a source of biometric data with existing data for that

specific person.

F.I Increased use of biometric technology

120 There had been an initial increase in the usage of biometric technology

in both developed and developing countries by both the private and the public

sector. However, despite the increased adoption of biometric technologies by

developed countries in the 1980s and 1990s, recent trends depict their

reluctance to deploy biometric technology - or at least mass storage of

biometric data - because of privacy concerns.188 Key instances included the

187Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
188Privacy International, Biometrics: Friend or foe of privacy?, available at
https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
PART F

scrapping of the National Identity Register and ID cards in the UK, and

Germany’s decision to reject a centralised database when deploying biometric

passports.189 By contrast, in developing countries there is a rise in the

deployment of biometric technology since it is being portrayed to citizens as a

means to establishing their legal identity and providing them access to

services, as well as a tool for achieving economic development. However, too

often these goals are prioritised at the expense of their right to privacy and

other human rights.190 Simon Davies, an eminent privacy expert, points out

that it is not an accident or coincidence that biometric systems are most

aggressively tried out with welfare recipients since they are not in a position to

resist the State-mandated intrusion.191

There has been a particular increase in the use of biometric technology in

identification programs in developing countries. This is because “biometrics

include a wide range of biological measures which are considered sufficiently

unique at a population level to allow individual identification with high rates of

accuracy”.192 Lack of formal identification and official identity documentation in

the developing world is a serious challenge which impedes the ability of

governments as well as development organisations to provide essential goods

and services to the populations they serve.193 Further, identification is also

189 Ibid
190 Ibid
191 Simon Davies, as cited in John D. Woodward, Biometric Scanning, Law & Policy: Identifying the Concerns -

Drafting the Biometric Blueprint, University of Pittsburgh Law Review, (1997)
192 Daniel M. L Storisteanu, Toby L. Norman, Alexandra Grigore and Alain B. Labrique, Can biometrics beat the

developing world’s challenges?, Biometric Technology Today (2016)
193 Ibid
PART F

essential to the gathering of accurate data which is required for monitoring the

progress of government programmes.194 However, while biometric technology

brings many advantages, the flip side is that the same technology can also

lead to human rights violations:

“When adopted in the absence of strong legal frameworks
and strict safeguards, biometric technologies pose grave
threats to privacy and personal security, as their application
can be broadened to facilitate discrimination, profiling and
mass surveillance. The varying accuracy and failure rates of
the technology can lead to misidentification, fraud and civic
exclusion.”195

121 The adoption of biometric technologies in developing countries in

particular poses unique challenges since the implementation of new

technologies in these countries is rarely preceded by the enactment of robust

legal frameworks. Assessments of countries where a legal mechanism to

regulate new technologies or protect data has followed as an afterthought

have shown that there exists a huge risk of mass human rights violations

where individuals are denied basic fundamental rights, and in extreme cases,

even their identity.196

122 Technology today brings with it tremendous power and is much like two

sides of a coin. When applied productively, it allows individuals around the

world to access information, express themselves and participate in local and

global discussions in real-time in ways previously thought unimaginable. The

194 Ibid
195 Privacy International, Biometrics, available at https://privacyinternational.org/topics/biometrics
196 Privacy International, Biometrics: Friend or foe of privacy?, available at

https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
PART F

flip side is the concern over the abuse of new technology, including

biometrics, by the State and private entities by actions such as surveillance

and large-scale profiling. This is particularly acute, given the fact that

technological advancements have far outpaced legislative change. As a

consequence, the safeguards necessary to ensure protection of human rights

and data protection are often missing. The lack of regulatory frameworks, or

the inadequacy of existing frameworks, has societal and ethical consequences

and poses a constant risk that the concepts of privacy, liberty and other

fundamental freedoms will be misunderstood, eroded or devalued.197

123 Privacy has been recognized as a fundamental human right in various

national constitutions and numerous global and regional human rights treaties.

In today’s digital age, the right to privacy is “the cornerstone that safeguards

who we are and supports our on-going struggle to maintain our autonomy and

self-determination in the face of increasing state power.”198

124 The proliferation of biometric technology has facilitated the invasion of

individual privacy at an unprecedented scale. The raw information at the heart

of biometrics is personal by its very nature.199 The Aadhaar Act recognises

this as sensitive personal information. Biometric technology is unique in the

sense that it uses part of the human body or behaviour as the basis of

authentication or identification and is therefore intimately connected to the
197 Ibid
198 Privacy International, Biometrics: Friend or foe of privacy?, available at
https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
199 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013)
PART F

individual concerned. While biometric technology raises some of the same

issues that arise when government agencies or private firms collect any

personal information about citizens, there are specific features that distinguish

biometric data from other personal data, making concerns about biometric

technology of particular importance with regard to privacy protection.200

125 There are two main groups of privacy- related interests that are directly

pertinent to the contemporary discussion on the ethical and legal implications

of biometrics.201 The first group falls under ‘informational privacy’ and is

concerned with control of personal information. The ability to control personal

information about oneself is closely related to the dignity of the individual, self-

respect and sense of personhood. The second interest group falls under the

rubric of ‘physical privacy’. This sense of privacy transcends the purely

physical and is aimed essentially at protecting the dignity of the human

person. It is a safeguard against intrusions into persons’ physical bodies and

spaces. Another issue is of property rights with respect to privacy, which

concerns the appropriation and ownership of interests in human personality. In

many jurisdictions, the basis of informational privacy is the notion that all

information about an individual is in some fundamental way their own

property, and it is theirs to communicate or retain as they deem fit.

200 Ibid
201 Ibid
PART F

126 The collection of most forms of biometric data requires some

infringement of the data subject’s personal space. Iris and fingerprint scanners

require close proximity of biometric sensors to body parts such as eyes, hands

and fingertips.

Even in the context of law enforcement and forensic identification, the use of

fingerprinting is acknowledged to jeopardise physical privacy. Many countries

have laws and regulations which are intended to regulate such measures, in

order to protect the individual’s rights against infringement by state powers

and law enforcement. However, biometrics for the purpose of authentication

and identification is different as they do not have a specific goal of finding

traces related to a crime but are instead conducted for the purpose of

generating identity information specific to an individual. This difference in

purpose actually renders the collection of physical biometrics a more serious

breach of integrity and privacy. It indicates that there may be a presumption

that someone is guilty until proven innocent. This would be contrary to

generally accepted legal doctrine that a person is innocent until proven guilty

and will bring a lot of innocent people into surveillance schemes.

127 Concerns about physical privacy usually take a backseat as compared

to concerns about informational privacy. The reason for this is that physical

intrusion resulting from the use of biometric technology usually results from

the collection of physical information. However, for some people of specific
PART F

cultural or religious backgrounds, even the mental harm resulting from

physical intrusion maybe quite serious.202

Another concern is that the widespread usage of biometrics substantially

undermines the right to remain anonymous.203 People desire anonymity for a

variety of reasons, including that it is fundamental to their sense of freedom

and autonomy. Anonymity may turn out to be the only tool available for

ordinary people to defend themselves against being profiled. Thus, it is often

argued that biometric technology should not be the appropriate choice of

technology as biometrics by its very nature is inconsistent with anonymity.

Given the manner in which personal information can be linked and identified

using biometric data, the ability to remain anonymous is severely diminished.

While some argue that “it is not obvious that more anonymity will be lost when

biometrics are used”, this argument may have to be evaluated in light of the

fact that there is no existing identifier that can be readily equated with

biometrics.204 No existing identifier can expose as much information as

biometric data nor is there any other identifier that is supposed to be so

universal, long-lasting and intimately linked as biometrics. To say that the use

of biometrics will not cause further loss of anonymity may thus be overly

optimistic. Semi-anonymity maybe possible, provided that the biometric

system is carefully designed from the inception.

202 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
203 Ibid
204 Ibid
PART F

Another significant change brought about by biometric technology is the

precipitous decline of ‘privacy by obscurity’, which is essentially “a form of

privacy afforded to individuals inadvertently by the inefficiencies of paper and
other legacy recordkeeping.” Now that paper records worldwide are giving

way to more efficient digital record-keeping and identification, this form of

privacy is being extinguished, and sometimes without commensurate data

privacy protections put in place to remedy the effects of the changes.”206

128 Biometrically enhanced identity information, combined with

demographic data such as address, age and gender, among other data, when

used in increasingly large, automated systems creates profound changes in

societies, particularly in regard to data protection, privacy, and security.

Biometrics are at the very heart of identification systems. There are numerous

instances in history where the persecution of groups of civilians on the basis

of race, ethnicity and religion was facilitated through the use of identification

systems. There is hence an alarming need to ensure that the on-going

development of identification systems be carefully monitored, while taking into

account lessons learnt from history.

129 It is important to justify the usage of biometric technology given the

invasion of privacy. When the purpose of collecting the biometric data is just

for authentication and there is little or no benefit in having stronger user
205 Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect
privacy in relation to measures in Europe and the U.S., Health and Technology (2017), Vol. 7, at pages 539–
206 Ibid.
PART F

identification, it is difficult to justify the collection of biometric information. The

potential fear is that there are situations where there are few or no benefits to

be gained from strong user verification / identification and this is where

biometric technology may be unnecessary.207 (Example: When ascertaining

whether an individual is old enough to go to a bar and drink alcohol, it is

unnecessary to know who the person is, when all that is needed to be

demonstrated is that the individual is of legal age). Fundamental rights are

likely to be violated in case biometrics are used for applications merely

requiring a low level of security.

130 Biometric data, by its very nature, is intrinsically linked to characteristics

that make us ‘humans’ and its broad scope brings together a variety of

personal elements. It is argued that the collection, analysis and storage of

such innate data is dehumanising as it reduces the individual to but a number.

Ultimately, organisations and governmental agencies must demonstrate that

there is a compelling legitimate interest in using biometric technology and that

an obligatory fingerprint requirement is reasonably related to the objective for

which it is required. One way of avoiding unnecessary collection of biometric

data is to set strict legal standards to ensure that the intrusion into privacy is

commensurate with and proportional to the need for the collection of bio-

metric data.208

207 Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
208 Ibid
PART F

F.2 Consent in the collection of biometric data

131 Rules on the collection of physical data by government agencies usually

specify under what conditions a person can be required to provide fingerprints

and/or bodily tissues. If consent is required, rules are in place to regulate the

scope of consent. If forced searches are allowed, specifications are usually

provided as to how and by whom the search will be performed. Therefore, the

legal questions surrounding the issue should be:

(a) If required, what exactly should be the extent of coverage of the consent?

(b) When is the compulsory collection of biometric information required and

who is eligible to conduct it?

(c) What is the procedure to do so?

(d)What exactly should be filed and stored?

132 Biometric technology is far from being a mature technology and a

variety of errors inevitably occur. Mature technology is a popular term for any

technology for which any improvements in deployment are evolutionary rather

than revolutionary.209 Once a biometric system is compromised, it is

compromised forever. In the event of biometric identity theft, there would

appear to be no alternative but to withdraw the user from the system.

Passwords and numbers can be changed, but how does one change the basic

biological features that compromise biometrics in the event that there is a

theft?

209 Segen’s Medical Dictionary, 2012.
PART F

All of these parameters need to be applied to test the validity of the Aadhaar

legislation in a two-part inquiry: First, reports and steps taken by the

Government of India that guided the introduction and role of biometrics before

the enactment of the Aadhaar Act will be analysed, which will be followed by

an analysis of relevant provisions concerning the intersection of biometric

technology and privacy, as they are enshrined in the Aadhaar Act, 2016 and

supporting Regulations made under it.

F.3 Position before the Aadhaar legislation

Summary of Pre-Enactment Events

133 On 3 March 2006, the Department of Information Technology, Ministry

of Communications & Information Technology, gave its approval for

implementation of the project ‘Unique ID for Below Poverty Line Families’

(BPL) by the National Informatics Centre over a period of 12 months.210 This

was followed by a Processes Committee being set up a few months later on 3

July 2006, to suggest the processes for updation, modification, addition and

deletion of data from the core database to be created under the Unique ID

(“UID”) for BPL Families Project.211 The Processes Committee prepared a

210 Ministry of Communication & Information Technology, Department of Information Technology, Administrative
Approval for the project - “Unique ID for BPL families”, dated March 03, 2006 (Annexure R-1, List of Pre-
enactment dates and events for the Aadhaar project submitted by the Learned AG).
211 Department of Information Technology, Notification: Setting up of a Process Committee to suggest the
processes for updation, modification, addition & deletion of data and fields from the core database to be
created under the Unique ID for BPL families project, dated July 03, 2006 (Annexure R-2, List of Pre-
enactment dates and events for the Aadhaar project submitted by the learned AG).
PART F

paper titled ‘Strategic Vision: Unique Identification of Residents’212. The paper

recommended the linkage of the UID database with other databases which

would ensure continuous updation and user-based validation and use of the

Election Commission’s database as the base database.213 The document

inter-alia, also stated that statutory backing would be required for adoption of

UID in the long term;214 focus and conviction would be required on security

and privacy to ensure adoption by different stakeholders; 215 while

‘transparency vs. right to privacy’ was another challenge that would have to be

addressed.216 Biometrics, however, found no mention in the paper at this

stage.

Thereafter, on 4 December 2006, an Empowered Group of Ministers

(“EGoM”), was constituted with the approval of the Prime Minister to collate

the National Population Register (“NPR”) under the
Citizenship Act
1955 and

the Unique Identification Number Project.217 In its meeting held on 27 April

2007, the Processes Committee decided that the UID database would evolve

in three stages: initial, intermediate and final. Biometrics was mentioned for

the first time in the context of UID, when the committee agreed that if the

infrastructure was available and the photograph and/or biometrics of a

212 Strategic Vision: Unique Identification of Residents, dated 26 November 2006 (Annexure R-3, List of Pre-

enactment dates and events for the Aadhaar project submitted by the learned AG).
213 Ibid
214 Ibid
215 Ibid
216 Ibid
217 Constitution of an Empowered Group of Ministers to collate two schemes - the National Population Register
under the
Citizenship Act, 1955
and the Unique Identification Number (UID) project of the Department of
Information Technology (Annexure R-4, List of Pre-enactment dates and events for the Aadhaar project
submitted by the learned AG).
PART F

resident was obtainable along with other information, it would be captured in

the initial and intermediate stages as well.218 Subsequently, the EGoM

approved the establishment of a UID Authority under the Planning

Commission on 28 January 2008.219 while the strategy to collate NPR and UID

was also approved. The EGoM also agreed that the collection of data under

the NPR exercise could include collection of photographs and biometrics to

the extent feasible, while it was also resolved that the data collected under the

NPR would be handed over to the UID Authority for maintenance and

updation. The EGoM, in its fourth meeting dated 4 November 2008 decided

that initially, the UIDAI will be established as an executive body under the

Planning Commission for a period of 5 years. UIDAI, it was envisaged, will

create its database from the electoral roll of the ECI and verify it through

Below Poverty Line and Public Distribution System data, but it would also

have the authority to take its own decisions as to how a database should be

built.220 Consequently, the Government of India issued a notification on 28

January 2009 constituting the UIDAI as an attached office and executive

authority under the aegis of the Planning Commission.

218 Planning Commission, No. 4(4)/56/2005- C&I, Minutes of the Fifth Meeting of the Unique ID project under the
Chairmanship of Dr. Arvind Virmani (Annexure R-6, List of Pre-enactment dates and events for the Aadhaar
project submitted by the learned AG).

219 Minutes of the Second Meeting of the EGoM to collate two schemes - The National Population Register under
the
Citizenship Act, 1955
and the Unique Identification number (UID) project of the Department of Information
Technology (Annexure R-10, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).

220 Minutes of the Fourth Meeting of the EGoM to collate two schemes - The National Population Register under
the
Citizenship Act, 1955
and the Unique Identification Number (UID) project of the Department of Information
Technology (Annexure R-12, List of Pre-enactment dates and events for the Aadhaar project submitted by the
learned AG).
PART F

134 Following the constitution of UIDAI, the Secretary, Planning

Commission addressed a letter to Chief Secretaries of all States/ UTs on 6

May 2009 enclosing a brief write up on UIDAI and UID numbers for resident

Indians. The letter included the concept, implementation strategy, model of the

project along with the role and responsibilities of the states/ UTs.221 It was also

decided that partner databases for two-way linkages between the UID

database and the partner databases for maintenance and continuous updation

of the UID databases would be ECI database, Ministry of Rural Development-

rural household survey database and the State ration card (PDS) databases.

135 The first meeting of the PM’s Council of UIDAI, was held on 12 August

2009. Various proposals were approved by the Council,222 by which it was

decided, among other things, that the proposal to designate UIDAI as an apex

body to set standards in the area of biometrics and demographic data

structures be approved. On 29 September 2009, UIDAI set up the Biometrics

Standards Committee (“BSC”) to frame biometric standards for UIDAI. The

Committee was assigned with the following mandate:223

● To develop biometric standards that will ensure interoperability of devices,

systems and processes used by various agencies that use the UID system.

221 Secretary, Government of India, Planning Commission, D.O. No. A-11016/02/09-UIDAI (Annexure R-22, List
of Pre-enactment dates and events for the Aadhaar project submitted by the learned AG).
222 Planning Commission, Minutes of the meeting of the PM’s Council of UIDAI (Annexure R-35, List of Pre-

enactment dates and events for the Aadhaar project submitted by the Learned AG).
223 Planning Commission, UIDAI, Office Memorandum, available at
https://www.uidai.gov.in/images/resource/Biometric_Standards_Committee_Notification.pdf.
PART F

● To review the existing standards of Biometrics and, if required,

modify/extend/enhance them so as to serve the specific requirements of

UIDAI relating to de-duplication and Authentication.

This was followed by the creation of the Demographic Data Standards and

Verification Procedure Committee (“DDSVPC”) on 9 October 2009, with the

following mandate:224

● Review/ modify/ extend/ enhance the existing standards of Demographic

data and recommend the Demographic Data standards (The data fields

and their formats/structure, etc.) that will ensure interoperability and

standardization of basic demographic data and their structure used by

various agencies that use the UID system; and

● Recommend the Process of Verification of this demographic data in order

to ensure that the data captured, at the time of enrolment of the residents

into the UID system, is correct.

136 The DDSVPC in its report dated 9 December 2009, stated that UIDAI

had selected biometrics features as the primary method to check for duplicate

identity. In order to ensure that an individual was uniquely identified in an easy

and cost-effective manner, it was necessary to ensure that the captured

biometric information was capable of carrying out de-duplication at the time

when information was collected.225 The Know Your Resident (“KYR”)

224 DDSVPC (UIDAI), DDSVPC Report, dated 09 December 2009, available at
https://uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0.pdf ,at pages 5-6.
225 Ibid, at page 4
PART F

verification procedure was introduced to ensure that “key demographic data is

verified properly so that the data within UID system can be used for

authentication of identity by various systems”. Three distinct methods of

verification were to be acceptable under UID. Verification could be based on

● Supporting documents;

● An introducer system under which a network of “approved” introducers can

introduce a resident and vouch for the validity of the resident’s information;

and (This idea was borrowed from the account opening procedure in the

banks.)

● The process adopted for public scrutiny in the National Population

Register.

137 In order to verify the correctness of certain mandatory fields, such as

name, date-of-birth, and address, a “Proof of Identity” (PoI) and “Proof of

Address” (PoA) would be required. This would comprise of documents

containing the resident’s name and photograph and the name and address,

respectively. On 9 April 2010, the collection of iris biometrics for the NPR

exercise was approved.226

138 A strategy overview issued by UIDAI in April 2010 described the

features, benefits, revenue model and timelines of the project.227 The survey

226 Annexure R-43, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG
227 UIDAI, UIDAI Strategy Overview, available at

http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf.
PART F

outlined that UIDAI would collect the following demographic and biometric

information from residents in order to issue a UID number:

● Name
● Date of birth
● Gender
● Father's/ Husband's/ Guardian's name and UID number (optional for adult
residents)
● Mother's/ Wife's/ Guardian's name and UID number (optional for adult
residents)
● Introducer's name and UID number ( in case of lack of documents)
● Address
● All ten fingerprints, photograph and both iris scans

On 12 May 2010, a note outlining the background of UIDAI, and proposing an

approach for collection of demographic and biometric attributes of residents

for the UID project was submitted to the Cabinet Committee on UIDAI. 228

Permission of the Union Cabinet was sought to ensure that the approach

which was proposed should be adhered to by the Registrar General of India

for the NPR exercise and by all other Registrars in the UID system. The

rationale behind the inclusion of iris biometrics and the need for capturing iris

scans at the time of capturing biometric details was also explained.

This was followed by the introduction of the National Identification Authority of

India Bill, 2010 (NIAI Bill) in the Rajya Sabha on 3 December 2010. On 13

February 2011, the one millionth Aadhaar card was delivered. Thereafter, on

228Annexure R-46, Volume II, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG
PART F

11 April 2011, the Central Government notified the Information Technology

(Reasonable security practices and procedures and sensitive personal data or

information) Rules, 2011 [“IT Rules”] under
Section 43A
of the IT Act, 2000.

On 29 September 2011, the Aadhaar project completed one year. An

announcement was made of the generation of ten crore enrolments and of

more than 3.75 crore Aadhaar numbers.

Analysis of UIDAI Reports & Rights of Registrars

A. Biometrics Standards Committee (BSC) Report

139 BSC in its report dated 30 December 2009 stated that it held extensive

meetings and discussions with international experts and technology suppliers.

A technical sub-group was formed to collect Indian fingerprints and analyze

quality. Over 2,50,000 fingerprint images from 25,000 persons were sourced

from the districts of Delhi, UP, Bihar and Orissa. Nearly all the images were

from rural regions, and were collected by different agencies using different

capture devices, and through different operational processes. The BSC report

is silent about the pretext on which fingerprints of 25,000 people were

collected. This action of UIDAI raises privacy concerns especially since the

fingerprints were collected from rural regions where people may not have

been aware or made aware by UIDAI before collection of fingerprints, of the

possible privacy harms of giving up biometrics.
PART F

BSC after reviewing international standards and current national

recommendations, concluded that a fingerprints-based biometric system was

to be at the core of UIDAI’s de-duplication efforts and that the ISO 19794

series of biometrics standards for fingerprints, face and iris set by the

International Standards Organization (ISO) were most suitable for the UID

project.229 BSC also observed that while a fingerprints-based biometric system

shall be at the core of UIDAI’s de-duplication efforts, its accuracy in the Indian

context could not predicted in the absence of empirical data:

“The Committee notes that face is the most commonly
captured biometric, and frequently used in manual checking.
However, stand-alone, automatic face recognition does not
provide a high level of accuracy, and can only be used to
supplement a primary biometric modality. Fingerprinting, the
oldest biometric technology, has the largest market share of
all biometrics modalities globally. … Based on these factors,
the Committee recognizes that a fingerprints-based
biometrics system shall be at the core of the UIDAI’s de-
duplication efforts…

The Committee, however, is also conscious of the fact that
de-duplication of the magnitude required by the UIDAI has
never been implemented in the world. In the global context, a
de-duplication accuracy of 99% has been achieved so far,
using good quality fingerprints against a database of up to
fifty million. Two factors, however, raise uncertainty about the
accuracy that can be achieved through fingerprints. First,
retaining efficacy while scaling the database size from fifty
million to a billion has not been adequately analyzed. Second,
fingerprint quality, the most important variable for determining
de-duplication accuracy, has not been studied in depth in the
Indian context.”230

140 In its report for discussion titled “Technical Standards for Digital Identity

Systems for Digital Identity”, the Identification for Development (ID4D)

initiative, a cross-departmental effort report of the World Bank, noted that

229 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
230 Ibid.
PART F

UIDAI had not implemented “an important security standard, ISO 24745,

which provides guidance for the protection of biometric information for

confidentiality and integrity during storage or managing identities … due to the

complexity of applicable compliance procedures” for the Aadhaar system. 231

Proponents of the program argue that in all fairness to UIDAI, it has to be

noticed that the ISO 24745 standard was published in August 2011 whereas

the report of BSC had already been submitted to UIDAI in January 2010.

However, Mr. Myung Geun Chun, the Project Editor of ISO 24745, is reported

to have stated that ISO 24745 standard is an ‘invaluable tool’ for addressing

‘unique privacy concerns’ like ‘unlawful processing and use of data’ raised by

biometric identification because of its binding nature ‘which links biometrics

with personally identifiable information’.232

ISO 24745 seeks to “safeguard the security of a biometric system and the

privacy of data subjects with solid countermeasures”.233 ISO 24745 standard

specifies:

● “Analysis of threats and countermeasures inherent in
biometric and biometric system application models;
● Security requirements for binding between a biometric
reference and an identity reference;

● Biometric system application models with different
scenarios for the storage and comparison of biometric
references;

● Guidance on the protection of an individual’s privacy during
the processing of biometric information.”234

231 Identification for Development (World Bank Group), Technical Standards for Digital Identity Systems for Digital
Identity Draft for Discussion, available at http://pubdocs.worldbank.org/en/579151515518705630/ID4D-
Technical-Standards-for-Digital-Identity.pdf, at page 22.
232 Katie Bird, Is your biometric data safe online? ISO/IEC standard ensures security and privacy, (11 August

2011), available at https://www.iso.org/news/2011/08/Ref1452.html.
233 Ibid.

234 Ibid.
PART F

B. Strategy Overview of 2010

In this report, a balance was sought to be struck between ‘privacy and

purpose’ in respect of the information of the residents which was collected.

The report states that ‘agencies’ may store the information of the residents at

the time of enrolment, but they will not have access to the information stored

in the UID database.235 Further, for the purposes of authentication, requests

made by the agencies would be answered through a ‘Yes’ or a ‘No’ response

only.236 Under the sub-heading “Protecting Privacy and Confidentiality”, the

report stated that the additional information which was being sought from

people was only biometric information like fingerprints and iris scans, as other

information was already available with public and private agencies in the

country.237 Right to privacy and confidentiality were sought to be protected by

putting necessary provisions “in place”.238 It was also observed in the context

of privacy that loss of biometric information of a resident who is a victim of

identity theft, especially when such information is linked to banking, social

security and passport records, risks financial and other assets and the

reputation of the resident.239 According to the review, the envisaged UIDAI Act

(which was still under contemplation at the time of publishing of this report and

had not yet been legislated) would have remedies for the following offences:

235 UIDAI, UIDAI Strategy Overview, available at
http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW. pdf, at page 4
236 Ibid.

237 Ibid, at page 32
238 Ibid.

239 Ibid, at page 33
PART F

● “Unauthorized disclosure of information by anyone in
UIDAI, Registrar or the Enrolling agency;

● Disclosure of information violating the protocols set in place
by UIDAI;

● Sharing any of the data on the database with anyone;
● Engaging in or facilitating analysis of the data for anyone;
● Engaging in or facilitating profiling of any nature for anyone
or providing information for profiling of any nature for
anyone;

● All offences under the
Information Technology Act
shall be
deemed to be offences under UIDAI if directed against
UIDAI or its database.”240

However, according to the report, UIDAI was to concern itself only with identity

fraud and any grievances in respect of document fraud (counterfeit/

misleading documents) were to be left to the Registrar enrolling the

resident.241

141 The following conclusions emerge from the UIDAI’s strategy overview:

Firstly, the UIDAI was aware of the importance of biometric information before

the Aadhaar programme had been rolled out. Secondly, UIDAI had itself

contemplated a scenario of identity theft which could occur at the time of

enrollment for Aadhaar cards. However, it had no solution to the possible

harms which could result after the identity theft of a person, more so when the

potential ‘UIDAI Act’ was still in the pipeline and was not eventually enacted

until 2016.

240 Ibid.

241 Ibid, at page 34
PART F

C. Registrars

142 The term ‘Registrar’ was first defined by UIDAI in its DDSVPC Report as

“any government or private agency that will partner with UIDAI in order to

enroll and authenticate residents”.242 In the Strategy Overview, the term was

defined as “agencies such as central and state departments and private sector

agencies who will be ‘Registrars’ for the UIDAI”.243

The Strategy Overview also stated that:

“Registrars will process UID applications, and connect to the
CIDR to de-duplicate resident information and receive UID
numbers. These Registrars can either be enrollers, or will
appoint agencies as enrollers, who will interface with people
seeking UID numbers. The Authority will also partner with
service providers for authentication. If the Registrar issues a
card to the resident, the UIDAI will recommend that the card
contain the UID number, name and photograph. They will be
free to add any more information related to their services
(such as Customer ID by bank). They will also be free to
print/ store the biometric collected from the applicant on
the issued card. If more registrars store such biometric
information in a single card format, the cards will become
interoperable for offline verification. But the UIDAI will not
insist on, audit or enforce this.”244 (Emphasis supplied)

143 In the ‘Aadhaar Handbook for Registrars 2010’ (“2010 Handbook”),

following policy guidelines were laid down in respect of Registrars:

1. “Registrars may retain the biometric data collected from
residents enrolled by them. However, the Registrar will have to
exercise a fiduciary duty of care with respect to the data
collected from residents and will be responsible for loss,
unauthorized access to and misuse of data in their custody.

2. In order to ensure data integrity and security, the biometrics
captured shall be encrypted upon collection by using the

242 DDSVPC (UIDAI), DDSVPC Report, (9 December 2009), available at
https://uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0. pdf , at page 5
243 UIDAI, UIDAI Strategy Overview, available at

http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf, at page 2
244 Ibid, at page 15
PART F

encryption key defined by the Registrar. It is the responsibility
of the Registrar to ensure the safety, security and
confidentiality of this data which is in their custody. The
Registrar must protect the data from unauthorized access and
misuse. The UIDAI will define guidelines for the storage of
biometric data in order to give the Registrar some
guidance on ensuring security of the data. The Registrar
shall have to define their own security policy and protocols to
ensure safety of the Biometric data. The Registrars shall bear
liability for any loss, unauthorized access and misuse of this
data. In the interest of transparency, it is recommended
that the Registrar inform the resident that they will be
keeping the biometric data and also define how the data
will be used and how it will be kept secure.”245
(Emphasis supplied)

In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”), it was

stated that “UIDAI has defined security guidelines for the storage of

biometric data”.246 While it is indicated in the handbook that guidelines for

storage were defined by UIDAI, it is evident that this took place only after 2010

before which the registrars were functioning without guidelines mandating how

the biometric data was to be kept secure.

The following guideline finds mention both in the Handbook of 2010 and 2013:

“In the interest of transparency, it is recommended that the
Registrar inform the resident that they will be keeping the
biometric data and also define how the data will be used and
how it will be kept secure”.247

However, it is apparent from this guideline that it was merely a

recommendation to the Registrars, and no obligation was cast upon the

245 UIDAI, Aadhaar Handbook for Registrars, available at
http://doitc.rajasthan.gov.in/administrator/Lists/Downloads/Attachments/26/aadhaar_handbook_version. pdf,
at page 11
246 Annexure R-74, Volume III, List of Pre-enactment dates and events for the Aadhaar project, Submissions by
the AG.

247 UIDAI (Planning Commission), Aadhaar Handbook for Registrars (2010), available at
http://indiamicrofinance.com/wp-content/uploads/2010/08/Aadhaar-Handbook. pdf, at page 11; UIDAI
(Planning Commission), Aadhaar Handbook for Registrars (2013), at page 16 (Annexure R-74, List of Pre-

enactment dates and events for the Aadhaar project submitted by the Learned AG).
PART F

Registrars, to inform residents that their biometric data will be stored by them

and how the data was to be used and kept secure. In contrast,
Regulation 5
of

the Aadhaar (Sharing of Information) Regulations 2016, states:

“Responsibility of any agency or entity other than
requesting entity with respect to Aadhaar number. —

(1) Any individual, agency or entity which collects
Aadhaar number or any document containing the
Aadhaar number, shall: (a) collect, store and use the
Aadhaar number for a lawful purpose; (b) inform the
Aadhaar number holder the following details:— i. the
purpose for which the information is collected; ii.

whether submission of Aadhaar number or proof of
Aadhaar for such purpose is mandatory or voluntary, and
if mandatory, the legal provision mandating it; iii.
alternatives to submission of Aadhaar number or the
document containing Aadhaar number, if any; (c) obtain
consent of the Aadhaar number holder to the collection,
storage and use of his Aadhaar number for the specified
purposes.

(2) Such individual, agency or entity shall not use the
Aadhaar number for any purpose other than those specified
to the Aadhaar number holder at the time of obtaining his
consent.

(3) Such individual, agency or entity shall not share the
Aadhaar number with any person without the consent of the
Aadhaar number holder.” (Emphasis supplied)

144 What the Registrar is obliged to do under law after the enactment of the

Aadhaar Act, was a recommendation to the Registrar prior to the enactment of

the Aadhaar Act. Thus, it is uncertain whether residents were informed about

where and how their data would be kept secure since the guidelines to the

Registrars were only recommendatory in nature. Similarly, in a UIDAI

document titled ‘Roles and Responsibilities of Enrollment Staff, 2017’, one of

the ‘Fifteen Commandments that an Operator must remember during Resident

Enrollment’ is “Make sure that the resident is well informed that his/her
PART F

biometric will only be used for Aadhaar Enrolment/Update and no other

purpose”.248 However, in the UIDAI document titled ‘Enrollment Process

Essentials, 2012’, there is no mention of any such obligation being placed

upon the enrolment staff.249 In the absence of informed consent for the

collection of data, a shadow of potential illegality is cast.

F.4 Privacy Concerns in the Aadhaar Act

1 Consent during enrolment and authentication & the right to access
information under the Aadhaar Act

145 Section 3(2) of the Aadhaar Act requires enrolment agencies to inform

the individual being enrolled about: a) the manner in which information shall

be used; b) the nature of recipients with whom the information is to be shared

during authentication; and c) the existence of a right to access information.

However, the Enrolment Form in Schedule I of the Enrolment Regulations

does not offer any clarification or mechanism on how the mandate of
Section

3(2)
is to be fulfilled.

The right of an individual to access information related to his or her

authentication record is recognized in
Section 3(2)(c)
and
Section 32(2)
of the

248 UIDAI, Roles and Responsibilities of Enrolment Staff, available at
https://idai.gov.in/images/annexure_b_roles_and_responsibility_of_enrolment_staff. Pdf , at page 8
249UIDAI, Enrolment Process Essentials (13 December 2012), available at

http://www.nictcsc.com/images/Aadhaar%20Project%20Training%20Module/English%20Training%20Module/
module2_aadhaar_enrolment_process17122012. pdf
PART F

Aadhaar Act. However, the supplementary regulations that complement the

Act are bereft of detail on the procedure to access such information.

Similarly,
Regulation 9(c)
of the Enrolment Regulations states that the

procedure for accessing data would be provided to residents through the

enrolment form, which is found in Schedule I to the Enrolment Regulations.

However, all that Schedule I states is: “I have a right to access my identity

information (except core biometrics) following the procedure laid down by

UIDAI”, without any such procedure actually being laid down.
Section 2(I)
of the Act, which defines an enrolling agency read with

Regulation 23
of the Aadhaar (Enrolment and Update) Regulations allows for

the collection of sensitive personal data (demographic and biometric

information) of individuals by private agencies, which also have to discharge

the burden of explaining the voluntary nature of Aadhaar registration and

obtaining an individual’s informed consent.

The Authentication Regulations, framed under sub-section (1), and sub-

clauses (f) and (w) of sub-section (2) of Section 54 of the Aadhaar Act deal

with the authentication framework for Aadhaar numbers, the governance of

authentication agencies and the procedure for collection, storage of

authentication data and records.
Regulation 5 (1)
states what details shall be

made available to the Aadhaar number holder at the time of authentication
PART F

which are a) the nature of information that will be shared by the Authority upon

authentication, (b) the uses to which the information received during

authentication may be put; and (c) alternatives to submission of identity

information.
Regulation 6 (2)
mandates that a requesting entity shall obtain the

consent of an Aadhaar number holder for authentication in physical or,

preferably, in electronic form and maintain logs or records of the consent

obtained in the manner and form as may be specified by the Authority for this

purpose.

Although
Regulation 5
mentions that at the time of authentication, requesting

entities shall inform the Aadhaar number holder of alternatives to submission

of identity information for the purpose of authentication, and
Regulation 6

mandates that the requesting entity shall obtain the consent of the Aadhaar

number holder for the authentication, in neither of the above circumstances do

the regulations specify the clearly defined options that should be made

available to the Aadhaar number holder in case they do not wish to submit

identity information, nor do the regulations specify the procedure to be

followed in case the Aadhaar number holder does not provide consent. This is

a significant omission. Measures for providing alternatives must be defined in

all identity systems, particularly those that are implemented on a large scale.
PART F

2 Extent of information disclosed during authentication & sharing of

core biometric information
Section 8(4)
of the Act permits the Authority to respond to an

authentication query with a “positive, negative or any other appropriate

response sharing such identity information excluding any core biometric

information”. The petitioners have argued that the wide ambit of this provision

gives the Authority discretion to respond to the requesting entity with

information including an individual’s photograph, name, date of birth, address,

mobile number, email address and any other demographic information that

was disclosed at the time of enrolment.

Moreover, it must be realized that even if core biometric information cannot be

shared, demographic information is nonetheless, sensitive.
Regulation 2(j)
of

the Authentication Regulations250 provides that a digitally signed response

with e-KYC data251 [which is defined in
Regulation 2(k)
] can be returned to the

requesting entity, while
Regulation 3(ii)
provides for this form of

authentication (e-KYC) by UIDAI.
Regulation 2(j)
of Aadhaar (Authentication) Regulations: “e-KYC authentication facility” means a type of
authentication facility in which the biometric information and/or OTP and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting entity, is matched against the data
available in the CIDR, and the Authority returns a digitally signed response containing e-KYC data along with
other technical details related to the authentication transaction.
Regulation 2(k)
of Aadhaar Authentication Regulations: “e-KYC data” means demographic information and

photograph of an Aadhaar number holder.
Regulation 3(ii)
of Aadhaar (Authentication) Regulations, 2016: “3. Types of Authentication-There shall be

two types of authentication facilities provided by the Authority, namely— (i) Yes/No authentication
facility, which may be carried out using any of the modes, (ii) e-KYC authentication facility, which may be
carried out only using OTP and/ or biometric authentication modes as specified in regulation 4(2)”.
PART F

148 Section 29(1) of the Aadhaar Act expressly states that ‘core biometric

information can never be shared with anyone for any reason whatsoever or be

used for any purpose other than generation of Aadhaar numbers and

authentication under this Act’. However, this provision which seemingly

protects an individual’s core biometric information from being shared is

contradicted by
Section 29(4)
of the Act, the proviso to which grants UIDAI

the power to publish, display or post core biometric information of an individual

for purposes specified by the regulations. The language of this section is

overbroad and which could lead to transgressions and abuse of power.

Moreover, sub-
sections 29(1)
and (2), in effect, create distinction between two

classes of information (core biometric information and identity information),

which are integral to individual identity. Identity information requires equal

protection as provided to core biometric information.

3 Expansive scope of biometric information

149 Definitions of biometric information [
Section 2(g)
], core biometric

information [
Section 2(j)
] and demographic information [
Section 2(k)
] under

the Aadhaar Act are inclusive and expansive.
Section 2(g)
defines 'biometric

information' as “photograph, fingerprint, iris scan, or such other biological

attributes of an individual as may be specified by regulations”.
Section 2(j)

defines ‘core biometric information’ as “fingerprint, Iris scan, or such other
Section 29(4)
states: “No Aadhaar number or core biometric information collected or created under this Act in
respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes
as may be specified by regulations.”
PART F

biological attribute of an individual as may be specified by regulations”.

Section 2(t)
explains that the regulations are to be made by UIDAI, which is

the supreme authority under the Act.
Sections 2(g)
, (j), (k) and (t) give

discretionary power to UIDAI to define the scope of biometric and

demographic information. Although the Act specifically provides what

information can be collected, it does not specifically prohibit the collection of

further biometric information. The scope of what can, in addition, be collected,

has been left to regulations. These provisions empower UIDAI to expand on

the nature of information already collected at the time of enrolment, to the

extent of also collecting ‘such other biological attributes’ that it may deem fit by

specifying it in regulations at a future date.

The definitions of these sections provide the government with unbridled

powers to add to the list of biometric details that UIDAI can require a citizen to

part with during enrolment which might even amount to an invasive collection

of biological attributes including blood and urine samples of individuals.

4 Other concerns regarding the Aadhaar Act: Misconceptions
regarding the efficacy of biometric information

150 The uniqueness of a fingerprint in forensic science remains an

assumption without watertight proof. The uniqueness of biometric data is not

absolute, it is relative. Not everyone will have a particular biometric trait, or an

individual’s biometric trait may be significantly different from the ‘normal’
PART F

expected trait. Some people may be missing fingerprints due to skin or other

disease, which may cause further problems when enrolling a large population

in a fingerprint-based register. Discrimination concerns may also be raised in

such a case. Therefore, a large scale biometric scheme will usually need to

utilise more than one biometric. For example- both fingerprint and face to

ensure all people can be enrolled.254

The stability of even so called stable types of biometric data is not absolute.

Each time an individual places a fingerprint on a fingerprint reader, the pattern

may appear to be the same from a short distance, but there are actually small

differences in the pattern due to dryness, moisture and elasticity of the skin.

Moreover, cuts and scratches can alter the pattern. Similarly, even the iris, a

popular biometric measurement suffers from difficulties in obtaining a valid

image. The iris can also be hindered by specula reflections in uncontrolled

lighting situations. These problems also apply to other relatively stable

biometric identifiers.255

151 Sections 6256 and 31(2)257 of the Aadhaar Act place an additional onus

on individual Aadhaar holders to update their information. These provisions

254Ramesh Subramanian, Computer Security, Privacy & Politics: Current Issues, Challenges & Solutions, IRM
Press, at pages 99-100
255Ibid, at page 100
256Section 6 states: “The Authority may require Aadhaar number holders to update their demographic information

and biometric information, from time to time, in such manner as may be specified by regulations, so as to
ensure continued accuracy of their information in the Central Identities Data Repository.”
257Section 31(2) states: “In case any biometric information of Aadhaar number holder is lost or changes

subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary
alteration in his record in the Central Identities Data Repository in such manner as may be specified by
regulations.”
PART F

create a legal mandate on individuals to ensure that their information is

accurate within the CIDR. It is an acknowledgement that an individual’s

biometric information may change from time to time. Natural factors like

ageing, manual labour, injury and illness can cause an individual’s biometric

information to be altered over the course of a lifetime. Critics of the Aadhaar

program however point to the fact that provisions for updation fly in the face of

UIDAI’s repeated advertisements that Aadhaar enrolment is a “one-time”

affair, as it is not and will never be. Moreover, there is no way in which a

person can estimate that he or she is due for an update, as this is not

something that can be discerned by actions as innocuous as looking in the

mirror or at one’s fingers, and therefore there remains no objective means of

complying with the above sections. In fact, an authentication failure and a

subsequent denial of welfare benefits, a subsidy or a service that an individual

is entitled to might be the only way one comes to the conclusion that his or her

biometrics need to be updated in the CIDR.258

Moreover, since the promise of Aadhaar as a unique identity hinges on the

uniqueness of biometrics, it would be logical to assume that any update to

biometric data should go through the same rigour as a new enrolment.

Regulation 19(a)
, entitled ‘Modes of Updating Residents Information’ under

Chapter IV of the Aadhaar (Enrolment and Update) Regulations, 2016

provides:

258 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,
2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics
PART F

“19. Mode of Updating Residents Information:

a) At any enrolment centre with the assistance of the operator
and/or supervisor. The resident will be biometrically
authenticated and shall be required to provide his Aadhaar
number along with the identity information sought to be
updated.”

This raises the question as to how an individual will update his/her biometric

information. If the biometric information stored in CIDR has changed, the

present biometrics will lead to mismatch during authentication. This

Regulation does not provide any real clarity on how updation should be taking

place in practice for the following reasons:

1. As required by the regulation, can an individual be asked to undergo

biometric authentication, when the purpose is to update the biometrics?

2. Does the provision amount to an implied expectation that an individual is

supposed to revisit the enrolment centre before all ten fingers and two

irises (core biometric information) are rendered inaccurate for the

purposes of authentication?259

This is also evidence of the fact that an Aadhaar enrolment is not a one-time

affair.

5 No access to biometric records in database

152 The proviso to Section 28(5)260 of the Aadhaar Act disallows an

individual access to the biometric information that forms the core of his or her

259 Ibid.
Section 28(5)
states: “Notwithstanding anything contained in any other law for the time being in force, and
save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency
PART F

unique ID (Aadhaar). The lack of access is problematic for the following

reasons: First, verification of whether the biometrics have been recorded

correctly or not in the first place is not possible. This becomes critical when

that same information forms the basis of identity and is the basis of

authentication and subsequent access to welfare benefits and other services.

Second, there is a great potential for fraudulently replacing a person’s

biometric identity in the database, as the individual has no means to verify the

biometric information that has been recorded at the time of enrolment. Even

an entity like the enrolment operator (with a software hack) could upload

someone else’s biometrics against another person.261 Denial of access to the

individual violates a fundamental principle of data protection: ownership of the

data must at all times vest with the individual. Overlooking this fundamental

principle is manifestly arbitrary and violative of
Article 14.

6 Biometric locking

153 Authentication Regulations 11 (1) and (4) provide for the facility of

Biometric Locking.
Regulation 11(1)
provides:

“The Authority may enable an Aadhaar number holder to
permanently lock his biometrics and temporarily unlock it
when needed for biometric authentication.”

that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal
any information stored in the Central Identities Data Repository or authentication record to anyone:

Provided that an Aadhaar number holder may request the Authority to provide access to his identity information
excluding his core biometric information in such manner as may be specified by regulations.”
261 L. Vishwanath, Four Reasons You Should Worry About Aadhaar's Use of Biometrics, The Wire (28 March,

2017), available at https://thewire.in/rights/real-problem-aadhaar-lies-biometrics
PART F

Regulation 11(4)
provides:

“The Authority may make provisions for Aadhaar number
holders to remove such permanent locks at any point in a
secure manner.”

The provision allowing biometric locking is salutary to the extent that it allows

Aadhaar number holders to permanently lock their biometrics and temporarily

unlock them only when needed for biometric authentication. But the regulation

is problematic to the extent that it also empowers the UIDAI to make

provisions to remove such locking without any specified grounds for doing

so.262

7 Key takeaways

154 The use of biometric technology is only likely to grow dramatically both

in the private and public sector. On our part, we can only ensure that the

strides made in technology are accompanied by stringent legal and technical

safeguards so that biometrics do not become a threat to privacy.263

155 There is no unique concept of privacy and there maybe trade-offs

between privacy and other objectives.264 The challenge regarding privacy is

best put in the following words:

262 The Centre for Internet & Society, Analysis of Key Provisions of the Aadhaar Act Regulations, (31 March,
2017), available at https://cis-india.org/internet-governance/blog/analysis-of-key-provisions-of-aadhaar-act-

regulations.

263 A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner Canada (1999), available at
http://www.ipc.on.ca/images/Resources/pri-biom.pdf
264 Robert Gellman. Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for
Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August
2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0. pdf
PART F

“The definition of privacy in any jurisdiction must take into
account cultural, historical, legal, religious and other local
factors. One size may not fit all countries, regions, or cultures
when it comes to privacy or to some elements of privacy. In
addition, views of privacy change as time passes and
technology advances. However, different perspectives are not
a barrier to evaluating privacy but a challenge.”265

The relationship between biometrics and privacy is completely shaped by the

design of the systems and the framework within which private and personal

data is handled. Unfortunately, particularly in developing countries the

adoption of biometrics has not been accompanied by an adequate discussion

of privacy concerns.266 Biometrics can also be a “staunch friend of privacy”

when the technology is used for controlling access and to restrict unauthorized

personnel from gaining access to sensitive personal information. 267 While

evaluating privacy consequences of biometric technology, it is also important

to bear in mind that there cannot be an assumption that current privacy

protections which may be appropriate for the present state of technology will

also be sufficient in the future.268 Technology will continue to develop as will

the need to develop corresponding privacy protections. Concerns around

privacy and data protection will have to be addressed. “Fair Information

Practices (FIPs), Privacy by Design (PbD), and Privacy Impact Assessments

(PIAs)”269 might be useful in addressing these concerns. FIPs offer the

substantive content for a privacy policy. PbD offers a proactive approach to

265 Ibid
266 Ibid
267John D Woodward, Biometrics: Identifying Law & Policy Concerns, in Biometrics (AK Jain A.K, R Bolle, and S

Pankanti eds.), Springer (1996)
268Robert Gellman, Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for

Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August,
2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0.pdf
269Ibid
PART F

the protection of privacy that relies on advance planning rather responding to

problems after they arise. PIAs offer a formal way to consider and assess the

privacy consequences of technology or other choices, including consideration

of alternatives early in the planning stages. These three methodologies are

not mutually exclusive and can be combined to achieve the just and optimal

result for society.270

156 Of particular significance is the “Do Not Harm” principle which means

that biometrics and digital identity should not be used by the issuing authority,

typically a government, or adjacent parties to serve purposes that could harm

the individuals holding the identification.271 Identity systems, whether in paper

or digital, must work for the public good and must do no harm. However,

identity systems due to their inherent power, can cause harm when placed

into hostile hands and used improperly. Great care must be taken to prevent

this misuse. “Do No Harm” requires rigorous evaluation, foresight, and

continual oversight.272

157 There are many adversarial actors – from private espionage groups to

foreign governments, who may try to exploit data vulnerabilities. There is also

the threat of abuse of power by future governments. However, creating and

instilling strong privacy protection laws and safeguards may decrease these

270 Ibid
271Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect privacy
in relation to measures in Europe and the U.S., Health and Technology, Vol. 7 (2017), at pages 539–567
272 Ibid
PART G

risks- such as the framework provided by the EUGDPR273. In order to uphold

democratic values, the government needs to curtail its own powers concerning

the tracking of all citizens and prevent the needless collection of data. Such

protections may assuage the fears and uphold the long-term legitimacy of

Aadhaar. If the legislative process takes into account public feedback and

addresses the privacy concerns regarding Aadhaar, it would provide a solid

basis for more digital initiatives, which are imminent in today’s digital age.

However, in its current form, the Aadhaar framework does not address the

privacy concerns issues discussed in this section of the judgment.

G Legitimate state aim

G.I Directive Principles

158 The Union government has contended that the legitimate state interest

in pursuing the Aadhaar project flows from the solicitous concern shown in the

text and spirit of the Constitution for realising socio-economic rights. The right

to food must, according to the view proposed before the Court, trump over the

right to privacy. The Aadhaar project, it has been urged, seeks to fulfil socio-

economic entitlements.

159 The Constituent Assembly did not work in a vacuum. The idealism with

which the members of the Assembly drafted the Constitution was the result of

273 General Data Protection Regulation, available at https://gdpr-info.eu/
PART G

the “social content of the Independence movement”274, which came from the

awareness of the members about the existing conditions of the Indian

masses. Granville Austin has therefore referred to the Constitution as a “social

document” and a “modernizing force”, whose provisions reflect “humanitarian

sentiments”.275 The Constitution was the medium through which the nascent

Indian democracy was to foster many goals. Austin observes:

“Transcendent among [the goals] was that of social
revolution. Through this revolution would be fulfilled the
basic needs of the common man, and, it was hoped, this
revolution would bring about fundamental changes in the
structure of Indian society.”276 (Emphasis supplied)

Austin has further observed:

“The first task of [the] Assembly… [was] to free India through
a new constitution, to feed the starving people, and to clothe
the naked masses, and to give every Indian the fullest
opportunity to develop himself according to his capacity.”277

In his work titled “The Constitution of India: A Contextual Analysis”, Arun K

Thiruvengadam identified one such goal of the Constitution as follows:

“The Indian Constitution sought to lay the blueprint for
economic development of the vast subcontinental nation,
which was an imperative for a populace that was largely
illiterate, poor and disproportionately situated in rural societies
that had limited access to many essential social goods and
infrastructural facilities.278”
.

“By establishing these positive obligations of the state, the
members of the Constituent Assembly made it the
responsibility of future Indian governments to find a middle
way between individual liberty and the public good,

274 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page xxii
275 Ibid, at pages 62, xiii and xxii
276 Ibid, at page xxi
277 Ibid, at page 32
278 Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis, (Bloomsbury 2017), at page 1
PART G

between preserving the property and the privilege of the
few and bestowing benefits on the many in order to
liberate ‘the powers of all men equally for contributions
to the common good’.”279 (Emphasis supplied)

160 The draftpersons of the Constitution believed that the driving force to

bring social change rested with the State. This is evident from an instance

during the proceedings of the Constituent Assembly. Dr. B R Ambedkar had

submitted to the Assembly a social scheme to be incorporated into the

Constitution, which included provisions to cover every adult Indian by life

insurance. However, his social scheme was rejected on the ground that such

provisions should be left to legislation and need not be embodied into the

Constitution.280

161 The social and economic goals which were contemplated at the time of

Independence remain at the forefront of the State’s agenda even today.

Certain parts of the Constitution play a leading role in declaring the blueprint

of its social intent. Directive Principles were specifically incorporated into the

Constitution for this purpose. Though not enforceable in courts, the principles

are “fundamental in the governance of the country” and it is the duty of the

State to apply these principles while making laws.281 The essence of the

Directive Principles lies in
Article 38
of the Constitution, which places an

obligation on the State to secure a social order for the promotion of the

279 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page 66
280 Ibid, at page 99
Article 37
, The Constitution of India
PART G

welfare of the people. Titled as Part IV of the Constitution, the Directive

Principles are symbolic of the welfare vision of the Constitution makers.

Article 38
of the Constitution provides that :

“(1) The State shall strive to promote the welfare of the people
by securing and protecting as effectively as it may a
social order in which justice, social economic and political,
shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.”

Clauses (b), (c), (e) and (f) of
Article 39
provide thus :

“39. The State shall, in particular, direct its policy towards
securing -

...

(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the
common good;

(c) that the operation of the economic system does not result
in the concentration of wealth and means of production to
the common detriment;

..

(e) that the health and strength of workers, men and women,
and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment.”

Article 41
speaks of the right to work, to education, and to public assistance :

“41. The State shall, within the limits of its economic capacity
and development, make effective provision for securing the
right to work, to education and to public assistance in cases
PART G

of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.”

Article 43
contemplates a living wage and conditions of work which provide a

decent standard of life:

“43. The State shall endeavour to secure, by suitable
legislation or economic organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living
wage, conditions of work ensuring a decent standard of life
and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co-operative
basis in rural areas.”

Article 47
casts a positive obligation upon the State to raise the level of

nutrition and the standard of living and to improve public health, as among its

primary duties. Reflecting a constitutional vision of socio-economic justice, the

values adopted in the Directive Principles are to be progressively realised in

the course of social and economic development.

162 In a recently published book titled “Supreme Court of India: The

Beginnings”, George H Gadbois, Jr. observes that the Indian Constitution,

“easily the lengthiest fundamental law in the world, probably ranks also as one

of the most eclectic ever produced”.282 Reflecting upon the constitutional

models from which the draftspersons of India’s Constitution drew sustenance,

Gadbois states:

“The Constitution makes provision for a parliamentary system
adapted from the British model, a federation patterned after
the
Government of India Act
of 1935 and the Canadian

282George H Gadbois, JR, Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds.),
Oxford University Press (2017), at page 193
PART G

Constitution, a set of emergency powers similar to those set
forth in the Weimar Constitution, a lengthy list of fundamental
rights adapted from the American experience with a Bill of
Rights, a Supreme Court endowed with express powers of
judicial review for which the American Supreme Court served
as the model, and list of “Directive Principles of State Policy”
patterned after the Constitution of Eire.”283

Reflecting on the Directive Principles, Gadbois observes:

“Suffice to say that the directive principles have provided the
constitutional basis and justification for the Government’s
efforts to establish a welfare state, or, to use the designation
preferred by Indian leaders, a “socialist pattern of society”.284

The sanction behind the Directives, according to him “is political and not

juridical”. On the other hand, the fundamental rights are justiciable because

Article 13
provides that a law which takes them away or abridges them will be

void. The conflict as Gadbois sees it is this:

“the directive principles are a set of instructions to the
Government of the day to legislate into being a welfare state,
which means, of course, an emphasis on the social and
economic uplift of the community at large and a
corresponding subtraction from individual rights. It is the duty
of the Government to apply these principles in making laws.
In short, the Constitution confers upon the Supreme Court the
task of making the fundamental rights meaningful against
possible infringements by the legislatures and executives,
and makes it obligatory for the Government to bring about
changes in the social and economic life of the nation,
changes which were bound to affect adversely some private
rights.

It is conceivable at least, that both the Supreme Court and the
Government could have pursued their respective tasks
without conflict, but this did not happen. The legislatures,
purporting to be doing no more than carrying out the duties
prescribed in the directive principles, enacted legislation
which the Supreme Court found to be in conflict with some of
the fundamental rights.”285

283 Ibid, at pages 193-194
284 Ibid, at page 195
285 Ibid, at pages 195-196
PART G

This formulation by Gadbois formed part of a dissertation in April 1965. The

evolution of jurisprudence in India since then has altered the Constitutional

dialogue. Over time, the values enshrined in the Directive Principles have

been read into the guarantees of freedom in Part III. In incremental stages, the

realisation of economic freedom has been brought within the realm of

justiciability, at least as a measure of the reasonableness of legislative

programmes designed to achieve social welfare.

163 As our constitutional jurisprudence has evolved, the Directive Principles

have been recognised as being more than a mere statement of desirable

goals. By a process of constitutional interpretation, the values contained in

them have been adopted as standards of reasonableness to expand the

meaning and ambit of the fundamental rights guaranteed by Part III of the

Constitution.286 In doing so, judicial interpretation has attempted to imbue a

substantive constitutional content to the international obligations assumed by

India in the Universal Declaration of Human Rights and the International

Covenant on Economic and Social and Cultural Rights. Eradicating extreme

poverty and hunger is a significant facet of the Millennium Development Goals

of the United Nations. Social welfare legislation is but a step to achieve those

goals. The enactment of the
National Food Security Act
2013 constituted a

milestone in legislative attempts to provide food security at the household

level.
The Act
discerns a targeted Public Distribution System for providing

food-grains to those below the poverty line. The rules contemplated in
Section
Minerva Mills Ltd. v Union of India
, (1980) 3 SCC 625
PART G

12(2)(b), incorporate the application of Information and Communication

Technology tools to ensure transparency of governance and prevent a

diversion of benefits. Another important piece of legislation has been the

Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) Act

2005 which was enacted for the enhancement of livelihood and security of

rural households.
The Act
guarantees a hundred days of wage employment in

every financial year to at least one able-bodied member of every household in

rural areas in public works programmes designed to create public assets.

Both the National Food Security Act
2013 and the
MGNREGA Act
2005 follow

a rights-based approach in dealing with endemic problems of poverty and

deprivation in rural areas. Leveraging Aadhaar for biometric identification of

beneficiaries, it has been argued by the respondents, is an intrinsic part of the

legislative effort to ensure that benefits in terms of food security and

employment guarantee are channelised to those for whom they are meant.

G.2 Development and freedom

164 Many scholars have delved into the substantive themes of the Indian

Constitution. Upendra Baxi has argued that the Indian Constitution has four

sovereign virtues: “rights, justice, development, and governance”287. Baxi

notes that they are “intertwined and interlocked with the rest and, in

contradictory combination/recombinations with both the constitutional and

287Upendra Baxi, “A known but an indifferent judge”: Situating Ronald Dworkin in contemporary Indian
jurisprudence, International Journal of Constitutional Law, (2003) at page 582
PART G

social past and their future images”.288 Development is a leading aspect of our

constitutional vision. Development in the constitutional context is not only

economic development assessed in terms of conventional indicators such as

the growth of the gross domestic product or industrial output. The central

exercise of development in a constitutional sense is addressing the

“deprivation, destitution and oppression”289 that plague an individual’s life.

165 In a traditional sense, freedom and liberty mean an absence of

interference by the state into human affairs. Liberty assumes the character of

a shield. The autonomy of the individual is protected from encroachment by

the state. This formulation of political rights reflects the notion that the state

shall not be permitted to encroach upon a protected sphere reserved for

individual decisions and choices. What the state is prevented from doing is

couched in a negative sense. Civil and political rights operate as restraints on

state action. They postulate a restriction on the state. Isaiah Berlin formulates

the negative conception of liberty thus:

“I am … free to the degree to which no man or body of man
interferes with my activity. Political liberty is simply the area
within which a man can act unobstructed by others.”290

166 Individual freedom, in this conception, imposes a duty of restraint on the

state. Modern ideas of neo liberalism have funnelled this notion. Neo-

liberalism postulates that the increasing presence of the state is a threat to

288 Ibid
289 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page xii
290 Isaiah Berlin, Two Concepts of Liberty, available at

http://faculty.www.umb.edu/steven.levine/courses/Fall%202015/What%20is%20Freedom%20Writings/Berlin.p
df
PART G

individual autonomy. A free market economy with minimum state control, in

this view, is regarded as integral to protecting individual rights and freedoms.

FA Hayek construes the content of liberty as meaning the absence of

obstacles. Resultantly, this notion of liberty regards the role of the state in a

narrow jurisprudential frame. Attempts by the state to pursue social justice or

to use its authority for redistribution of wealth would in this conception not be a

legitimate use of state power.291

167 The notion that liberty only consists of freedom from restraint does not

complete the universe of its discourse. Broader notions of liberty are cognizant

of the fact that individuals must be enabled to pursue their capacities to the

fullest degree. Social and economic discrimination poses real barriers to

access education, resources and the means to a dignified life. This approach

to understanding the content of freedom construes the ability to lead a

dignified existence as essential to the conception of liberty and freedom. The

integral relationship between removal of socio-economic inequality and

freedom has been eloquently set out by Amartya Sen in “Development as

Freedom”292:

“Development requires the removal of major sources of
unfreedom: poverty as well as tyranny, poor economic
opportunities as well as systematic social deprivation, neglect
of public facilities as well as intolerance or overactivity of
repressive states. Despite unprecedented increases in
overall opulence, the contemporary world denies elementary
freedoms to vast numbers – perhaps even the majority-of
people. Sometimes the lack of substantive freedoms relates
directly to economic poverty, which robs people of the

291 F A Hayek, The Constitution of Liberty, Routledge & Kegan Paul, (1960) at pages 11, 207-208
292 Amartya Sen, Development as Freedom, Oxford University Press (2000) at page 3-4
PART G

freedom to satisfy hunger, or to achieve sufficient nutrition, or
to obtain remedies for treatable illnesses, or the opportunity to
be adequately clothed or sheltered, or to enjoy clean water or
sanitary facilities. In other cases, the unfreedom links closely
to the lack of public facilities and social care, such as the
absence of epidemiological programs, or of organized
arrangements for health care or educational facilities, or of
effective institutions for the maintenance of local peace and
order. In still other cases, the violation of freedom results
directly from a denial of political and civil liberties by
authoritarian regimes and from imposed restrictions on the
freedom to participate in the social, political and economic life
of the community.”

In Sen’s analysis, human development is influenced by economic

opportunities, political liberties, social powers, and the enabling conditions of

good health, basic education, and the encouragement and cultivation of

initiatives. Taking it further, Sen has recognized an important co-relation in

terms of the non-availability of basic economic conditions:

“Economic unfreedom, in the form of extreme poverty, can
make a person a helpless prey in the violation of other kinds
of freedom… Economic unfreedom can breed social
unfreedom, just as social or political unfreedom can also
foster economic unfreedom.”293

168 The notion of freedom as an agency has been developed by Sen as

part of the ‘capability theory’. The necessary consequence of focusing upon

major sources of unfreedom, in a social and economic perspective, is that the

removal of these restraints is essential to the realization of freedom. If true

freedom is to be achieved through the removal of conditions which cause

social and economic deprivation, the role of the state is not confined to an

absence of restraint. On the contrary, the state has a positive obligation to

293 Ibid, at page 8
PART G

enhance individual capabilities. Martha Nussbaum294 argues that realising

freedom requires the state to discharge positive duties. Nussbaum expresses

a threshold level of capability below which true human functioning is not

available. Freedom is seen in terms of human development and is the process

by which individuals can rise above capability thresholds. In the realisation of

basic rights, the state is subject to positive duties to further the fulfilment of

freedom.

169 The broader conception of freedom and liberty which emerges from the

writings of Sen and Nussbaum has direct consequences upon how we view

civil and political rights and socio-economic rights. The distinction between

the two sets of rights becomes illusory once civil and political rights are

regarded as comprehending within their sweep a corresponding duty to take

such measures as would achieve true freedom. Henry Shue295 suggests that

rights give rise to corresponding duties. These duties include:

(i) a duty to respect;

(ii) a duty to protect; and

(iii) a duty to fulfil.

Duties of respect embody a restraint on affecting the rights of others. Duties

to protect mandate that the state must restrain others in the same manner as

it restrains itself. The state’s duty of non-interference extends to private

individuals. The duty to fulfil connotes aiding the deprived in the realisation of

294Martha Nussbaum, Women and Human Development, Cambridge University Press, (2000)
295Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton University Press, Second
Edition (1996)
PART G

rights. This imposes a corresponding duty to create the conditions which will

facilitate the realisation of the right. The right which is protected for the

individual will also signify an expectation that the state must create institutions

enabling the exercise of facilitative measures or programmes of action, of an

affirmative nature. The state has affirmative obligations to fulfil in the

realisation of rights. These positive duties of the state are readily apparent in

the context of welfare entitlements when the state must adopt affirmative

steps to alleviate poverty and the major sources of economic and social non-

freedom. But the thesis of Nussbaum and Shue have an important role for the

state to discharge in ensuring the fulfilment of political rights as well. In a

highly networked and technology reliant world, individual liberty requires the

state to take positive steps to protect individual rights. Data protection and

individual privacy mandate that the state put in place a positive regime which

recognises, respects and protects the individual from predatory market places.

The state has a positive duty to create an autonomous regulatory framework

in which the individual has access to remedies both against state and non-

state actors, both of whom pose grave dangers of assault on the individual as

an autonomous entity. Failure to discharge that duty is a failure of the state to

respect, protect and fulfil rights.

Dr Ambedkar’s prophetic final address to the Constituent Assembly elaborates

that vision:

“On the social plane, we have in India a society based on the
principle of graded inequality with elevation for some and
degradation for others. On the economic plane, we have a
society in which there are some who have immense wealth as
against many who live in abject poverty. On the 26th of
PART G

January 1950, we are going to enter into a life of
contradictions. In politics we will have equality and in social
and economic life we will have inequality...How long shall we
continue to live this life of contradictions? How long shall we
continue to deny equality in our social and economic life? If
we continue to deny it for long, we will do so only by putting
our political democracy in peril. We must remove this
contradiction at the earliest possible moment or else those
who suffer from inequality will blow up the structure of political
democracy which [this] Assembly has [so] laboriously built
up.”296

The pursuit of social welfare and security is a central aspect of development.

The State, in Ambedkar’s vision, would be the main instrumentality in the

debate on development, which has to revolve around the social, economic

and political spheres and would be guided by the values of the Constitution.

170 Social opportunities are the facilities and “arrangements that society

makes” for education, healthcare and nutrition, which “influence the

individual’s substantive freedom to live better”.297 Social security measures

include programmes which intend to promote the welfare of the population

through assistance measures guaranteeing access to sufficient resources.

The social security framework is not only important for individual

development, but also for effective participation in economic and political

activities. Social security programmes flow from ‘economic and social rights’−

also called as “welfare rights” 298

or second generation rights. These rights,

recognized for the first time under the Universal Declaration on Human

Rights, 1948 include a large list of freedoms and claims under its “protective

296 Constituent Assembly Debates (25 November 1949)
297 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 39
298 Amartya Sen, The Idea of Justice, Penguin (2009) at pages 379-380
PART G

umbrella”. They include not only basic political rights, but the right to work, the

right to education, protection against unemployment and poverty, the right to

join trade unions and even the right to just and favourable remuneration. 299

Social security programmes as an instrument for the removal of global poverty

and other economic and social deprivations are at the centre stage in the

global discourse.
Article 22
of the Universal Declaration of Human Rights

expressly recognises that every member of society is entitled to the right to

social security and to the realisation of economic, social and cultural rights.

Those rights are stated to be indispensable for dignity and to the free

development of personality. The realisation of these rights has to be facilitated

both through national efforts and international co-operation and in accordance

with the organisation and the resources of each state.
Article 22
stipulates

that:

“Article 22
Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort
and international co-operation and in accordance with the
organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the
free development of his personality.”

In a similar vein,
Article 23
comprehends a conglomeration of rights including

(i) the right to work; (ii) free choice of employment; (iii) just and favourable

conditions of work; (iv) protection against unemployment; (v) equal pay for

equal work without any discrimination; (vi) just and favourable remuneration

for work; and (vii) formation and membership of trade unions.
Article 23

299 Ibid, at page 380
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construes these rights as a means of ensuring both for the individual and the

family, an “existence worthy of human dignity” supplemented if necessary “by

other means of social protection”.

India having adopted the UDHR, its principles can legitimately animate our

constitutional conversations. Both
Articles 22
and
are significant in

recognising economic rights and entitlements in matters of work and social

security. Both the articles recognise the intrinsic relationship between human

dignity and the realisation of economic rights. Measures of social protection

are integral to the realisation of economic freedom and to fulfil the aspiration

for human dignity.

171 India adopted and ratified the Covenant on Civil and Political Rights as

well as the Covenant on Economic, Social and Cultural Rights. India acceded

to the Covenant on Economic, Social and Cultural Rights on 10 April 1979.

According to the Preamble, the states who are parties to the Covenant have

recognized that:

“the ideal of free human beings enjoying freedom from fear
and want can only be achieved if conditions are created
whereby everyone may enjoy his economic, social and
cultural rights, as well as his civil and political rights.”

Freedom is thus defined in terms of the absence of fear and want. Moreover,

freedom consists in the enjoyment of a conglomeration of rights: economic,
PART G

social and cultural as well as civil and political rights. There is in other words

no dichotomy between the two sets of rights.

Article 11
of the Covenant on Economic, Social and Cultural Rights imposes

positive obligations on the covenanting states:

“Article 11.

1. The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing
and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps
to ensure the realization of this right, recognizing to this
effect the essential importance of international
cooperation based on free consent.

2. The States Parties to the present Covenant, recognizing
the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-

operation, the measures, including specific programmes,
which are needed:

(a) To improve methods of production, conservation and
distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the
principles of nutrition and by developing or reforming
agrarian systems in such a way as to achieve the most
efficient development and utilization of natural resources;

(a) Taking into account the problems of both food-importing
the food-exporting countries, to ensure an equitable
distribution of world food supplies in relation to need.”

172 The Masstricht Guidelines on Violations of Economic, Social and

Cultural Rights (January 1997) stipulate that:

“It is now undisputed that all human rights are indivisible,
interdependent, interrelated and of equal importance for
human dignity. Therefore, states are as responsible for
violations of economic, social and cultural rights as they are
for violations of civil and political rights.”
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The Guidelines also stipulate that like civil and political rights, economic,

social and cultural rights impose three different types of obligations on states :

the obligation to respect, protect and fulfil. The guidelines recognize that

violations of economic, social and cultural rights can occur through acts of

commission and omission on the part of states. The omission or failure of

states to take measures emanating from their legal obligations may result in

such violations. Among them is the failure to enforce legislation or to put into

effect policies designed to implement the provisions of the Covenant. In

similar terms, the Limburg Principles on the Implementation of the

International Covenant on Economic, Social and Cultural Rights cast

affirmative duties on states to take immediate steps towards realizing the

rights contained in the Covenant. Clauses 16, 21 and 27 of the guidelines are

thus:

“16. All States parties have an obligation to begin
immediately to take steps towards full realization of the
rights contained in the Covenant.

21. The obligation “to achieve progressively the full
realization of the rights” requires States parties to move
as expeditiously as possible towards the realization of
the rights. Under no circumstances shall this be
interpreted as implying for States the right to defer
indefinitely efforts to ensure full realization. On the
contrary all States parties have the obligation to begin
immediately to take steps to fulfil their obligations under
the Covenant.

27. In determining whether adequate measures have been
taken for the realization of the rights recognized in the
Covenant attention shall be paid to equitable and
effective use of and access to the available resources.”

The office of the UN High Commissioner for Human Rights notified General

Comment No. 3, which was adopted at the fifth session of the Committee on
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Economic, Social and Cultural Rights on 14 December 1990. The Comment

states:

“…while the full realization of the relevant rights may be
achieved progressively, steps towards that goal must be
taken within a reasonably short time after the Covenant’s
entry into force for the States concerned. Such steps should
be deliberate, concrete and targeted as clearly as possible
towards meeting the obligations recognized in the Covenant.”

Similarly, General Comment No. 12 on the right to adequate food was

adopted at the twentieth session of the Committee on Economic, Social and

Cultural Rights on 12 May 1999. It states :

“The Committee observes that while the problems of hunger
and malnutrition are often particularly acute in developing
countries, malnutrition, under-nutrition and other problems
which relate to the right to adequate food and the right to
freedom from hunger also exist in some of the most
economically developed countries, Fundamentally, the roots
of the problem of hunger and malnutrition are not lack of food
but lack of access to available food, inter alia because of
poverty, by large segments of the world's population.”

The emphasis on the lack of access to available food is significant to the

present discourse. It indicates that access to food requires institutional

mechanisms to ensure that the available resources reach the beneficiaries for

whom they are intended.
Section 2(1)(f)
of the Protection of Human Rights Act 1993 specifically

adverts to the Covenant on Economic, Social and Cultural Rights:

“2.(1)(f) “International Covenants” means the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights adopted
by the General Assembly of the United Nations on 16th
December, 1996 and such other Covenant or Convention
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adopted by the General Assembly of the United Nations as
the Central Government may, by notification, specify;”

Under
Section 12(f)
, the National Human Rights Commission has been

entrusted with the function of studying treaties and other international

instruments of human rights and to make recommendations for their effective

implementation. Parliament has statutorily incorporated India’s obligations at

international law under the above covenants as a part of the national effort to

realise fundamental human freedoms. Achieving economic freedom is integral

to that mission. In his classic work “The Idea of Justice”, Amartya Sen has

observed in this regard:

“The inclusion of second-generation rights makes it possible
to integrate ethical issues underlying general ideas of global
development with the demands of deliberative democracy,
both of which connect with human rights and quite often with
an understanding of the importance of advancing human
capabilities.”300

174 Social security thus acts as an underpinning link with development.

There is also a two-way relationship between development and social security

(expansion of human capability). Dreze and Sen have dealt with this

relationship in their following observation:

“Growth generates resources with which public and private
efforts can be systematically mobilized to expand education,
health care, nutrition, social facilities, and other essentials of
fuller and freer human life for all. And the expansion of human
capability, in turn, allows a faster expansion of resources and
production, on which economic growth ultimately depends…
Well-functioning public services, especially (but not only) in
fields such as education and health, are also critical in
fostering participatory growth as well as in ensuring that

300 Amartya Sen, The Idea of Justice, Penguin (2009) at page 381
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growth leads to rapid improvements in people’s living
conditions.”301

The authors have further observed that apart from education and healthcare,

India faces larger issues of accountability in the “public sector as a whole”. 302

The lack of progress in public services acts as a huge barrier to improve the

quality of life of people.303 It has been observed:

“The relative weakness of Indian social policies on school
education, basic healthcare, child nutrition, essential land
reform and gender equity reflects deficiencies of politically
engaged public reasoning and social pressure, not just
inadequacies in the official thinking of the government.”304

The future of Indian democracy therefore depends on how it engages itself

with the issues of accountability in transfer of basic human facilities to the

common man.

175 The State has a legitimate aim to ensure that its citizens receive basic

human facilities. In order to witness development, the huge amount of

expenditure that the State incurs in providing subsidies and benefits to the

common citizens, must be accompanied by accountability and transparency.

Legislative and institutional changes are often capable of creating an

atmosphere of transparency and accountability. The most visible example of a

legislative enactment which brought institutional changes is the
Right to

Information Act, 2005
. Commentators have often highlighted the importance

301 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and xi
302 Ibid, at page xi
303 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33
304 Amartya Sen, The Idea of Justice, Penguin (2009) at page 349
PART G

of this legislation by deliberating upon how it has been successful at “curbing

corruption and restoring accountability in public life”305. According to the State,

though the Aadhaar programme is not in itself a social security programme,

the institutional framework established by the Act, seeks to act, in a way, as

an extension of social security programmes. The State has a legitimate

concern to check that the welfare benefits which it marks for those, who are

entitled, reach them without diversion. The Aadhaar programme, it is argued,

acts as an instrument for the realization of the benefits arising out of the social

security programmes. The Aadhaar programme, it was further contended,

fulfils the State’s concern that its resources are utilised fully for human

development.

It has been contended by the Respondents that since the establishment of the

UIDAI in 2009, its basic mandate is to provide a unique identity number to

residents. The number would subserve two purposes. First, it would serve as

a proof of identity. Second, it would be used for the purpose of identifying

beneficiaries for the transfer of social welfare benefits, provided by the state.

The rationale for establishing a method of identification is to ensure that the

benefits provided by social welfare programmes formulated by the State reach

the beneficiaries for whom they are intended. As a policy intervention, a

unique measure of identification is intended, it has been argued, to secure

financial inclusion. A significant hurdle in the success of social welfare

programmes is that benefits do not reach the targeted population. The reason
305 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 100
PART G

for this may have something to do intrinsically with the condition of the

individuals as much as with their larger socio-economic circumstances.

Migrant labour and labour in the unorganised sector lacks fixity of abode. The

nature of their work renders their lives peripatetic. Nomadic tribes, particularly

in inaccessible areas, may not have fixed homes. In many cases, traditional

occupations require individuals to move from place to place, dependent on

seasonal changes. Then again, groups of citizens including women, children

and the differently abled may face significant difficulties in accessing benefits

under publicly designed social welfare programmes as a result of factors such

as gender, age and disability.

176 Unequal access to welfare benefits provided by the State becomes a

significant source of deprivation resulting in a denial of the means to sustain

life and livelihood. Before the adoption of Aadhaar based-identity, there were

multiple platforms for identification of residents. They created a situation

where those with no identity had no access to the means of sustaining a

dignified life. Equally significant, as a policy intervention, was the issue of

capture. While on the one hand, large swathes of the population had no

access to welfare assistance, benefits could be captured by persons not

entitled to them either by the assertion of fake or multiple identities. Setting up

a fake identity enables an individual to pass off as another and to secure a

benefit to which that individual is not entitled. Fake identities compound the

problem of capture by allowing individuals to receive multiple benefits through
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shell identities. Policy makers were confronted with the serious problems

posed by fake and multiple identities since they imposed a burden on the

exchequer while at the same time diluting the efficacy of state designed social

welfare measures. The burden on the exchequer is illustrated by situations

where persons who are not entitled to benefits secure them in the guise of

being persons entitled to them. When imposters secure benefits which are

not meant for them, they deprive in the process, persons who are genuinely

entitled to benefits. The class of beneficiaries of social welfare programmes is,

so to speak, adulterated by the capture of benefits by those not entitled to

them. This raises serious concerns of the deprivation of human rights. The

capture of benefits has the consequence of depriving those to whom these

benefits should legitimately flow, of the measures designed by the state to

protect its populace from human want and need. The resources deployed by

the state are from its public revenues. When designing a unique measure of

identification, the state must be guided by the necessity of ensuring financial

inclusion and of protecting against financial exclusion. Every citizen who is

eligible for social welfare benefits should obtain them. No person who is

entitled should be excluded. Individuals who do not qualify for social welfare

benefits should not capture them by passing off as individuals entitled.

Enforcing and implementing a robust platform for identification of beneficiaries

must ensure that social welfare benefits reach the hands of those who fulfil the

conditions of eligibility and are not captured by rent-seeking behaviour of

those to whom social welfare benefits are not designed. This constitutes a
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legitimate object of state policy. Reaching out to the targeted population is a

valid constitutional purpose. Social welfare measures are an intrinsic part of

state policy designed to facilitate dignified conditions of existence to the

marginalised, especially those who live below the poverty line. Identification

of beneficiaries is crucial to the fulfilment of social welfare programmes.

177 These concerns form the basis of the Aadhaar (Targeted Delivery of

Financial and other Subsidies, Benefits and Services) Act, 2016. As its

Statement of Objects and Reasons explains:

“The correct identification of targeted beneficiaries for delivery
of various subsides, benefits, services, grants, wages and
other social benefits schemes which are funded from the
Consolidated Fund of India has become a challenge for the
Government. The failure to establish identity of an individual
has proved to be a major hindrance for successful
implementation of these programmes. This has been a grave
concern for certain categories of persons, such as women,
children, senior citizens, persons with disabilities, migrant
unskilled and unorganised workers, and nomadic tribes. In
the absence of a credible system to authenticate identity of
beneficiaries, it is difficult to ensure that the subsidies,
benefits and services reach to intended beneficiaries.”

The Statement of Objects and Reasons indicates that the enactment is

designed to ensure “the effective, secure and accurate delivery of benefits,

subsidies and services from the Consolidated Fund of India to targeted

beneficiaries”. The architecture of the law contemplates regulating the

following aspects:

“(a) issue of Aadhaar numbers to individuals on providing ..

demographic and biometric information to the Unique
Identification Authority of India;

(b) requiring, Aadhaar numbers for identifying an
individual for delivery of benefits, subsidies, and
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services (where) the expenditure is incurred from or
the receipt therefrom forms part of the Consolidated
Fund of India;

(c) authentication of the Aadhaar number of an Aadhaar
number holder in relation to his demographic and
biometric information;

(d) establishment of the Unique Identification Authority of
India… to perform functions in pursuance of the
objectives above;

(e) maintenance and updating the information of
individuals in the Central Identities Data Repository in
such manner as may be specified by regulations;

(f) measures pertaining to security, privacy and
confidentiality of information in possession or control
of the Authority including information stored in the
Central Identities Data Repository; and

(g) offences and penalties for contravention of relevant
statutory provisions.”

The Preamble to the enactment indicates that Parliament designed the

legislation as an instrument of good governance, to secure an “efficient,

transparent and targeted delivery of subsidies, benefits and services” for

which the expenditure is incurred from the Consolidated Fund to resident

individuals.

178 The Aadhaar platform is not a social welfare benefit in itself.

Essentially, what it seeks to achieve is to provide a unique identity to every

resident. This identity, in the form of an Aadhaar number, is obtained upon the

submission of demographic and biometric information in the course of

enrolment. The legislative design envisages that the identity of the individual is

verified through the process of authentication by which the biometric data

stored in the central repository is matched with the biometric information

submitted for authentication. Aadhaar is a platform for verification of identity
PART G

based principally on biometric information. In facilitating the process of

establishing the identity of the individual who seeks social welfare benefits

envisaged in
Section 7
, Aadhaar has an instrumental role. It is instrumental in

the sense that as a measure of state policy, it seeks to bring about financial

inclusion by providing a means of identification to every segment of the

population including those who may not have been within the coverage of

traditional markers of identity. As an instrument for verifying identity, Aadhaar

seeks to ensure that social welfare benefits are obtained by persons eligible to

do so and are not captured by the ineligible. Relying on an asserted reliability

of biometric markers, the Aadhaar platform attempts to eliminate, or at least to

curb rent-seeking behaviour.

The rationale underlying
Section 7
is the targeted delivery of services, benefits

and subsidies which are funded from the Consolidated Fund of India. In the

seven decades since Independence, the Union Government has put into place

social welfare measures including the public distribution system, free

education, scholarships, mid-day meals and LPG subsidies to ameliorate the

conditions of existence of the poor and marginalised. There is a state interest

in ensuring that the welfare benefits which the state provides reach those for

whom they are intended.
PART G

G.3 Identity and Identification

179 Identity is inseparable from the human personality. An identity is a

statement of who an individual is. Our identities define who we are. They

express what we would wish the world to know us as. The human personality

is, at a certain level, all about identity, for it is through the assertion of identity

that each individual seeks to preserve the core of his or her humanity. An

identity is the persona which an individual puts forth in a multitude of

relationships. The significance of our identity lies in our ability to express the

core of our beings. When the Constitution protects our right to be and to be

what we are, it creates a space where the individual is immune from

interference. By recognizing our liberty as autonomous persons, the

Constitution recognizes our ability to preserve and shape our identities in

interactions with others.

Identity may be, but is not always based upon immutable characteristics that

are defined at birth. What is immutable may not be or, at any rate, is not

generally understood as being capable of change. But even here, the

immutability of our features is relative to our own existence and is capable of

being shaped by the social milieu in which human beings lead their lives.

Features about our biological being which are defined at birth are, after all, not

as constraining upon our identities as is often assumed to be the case. That

is because these immutable features are also constantly engaged with our
PART G

social and cultural environment. They shape and are influenced by that

environment.

180 There is a distinction between identity and identification. Identification is

a matter of proof- of establishing that a person is actually, the individual who

claims a right or entitlement. In their daily interactions, individuals have to

distinguish themselves from others, whether it be in the course of

employment, travel, civil union, location, community perspectives, revenue

obligations or access to benefits. Identification is a proof of identity or

evidence of identity. Identification is mandatory in numerous activities of day

to day life: a passport is necessary for international travel, a voter ID is

required for exercising electoral rights, a driving license is necessary to ply a

vehicle and an arms license is needed to possess a fire arm. The holder of a

policy of medical insurance will have a card depicting his or her identity which

is a proof of holding a valid policy for availing medical benefits.

181 Under international law, recognition of identity is an obligation of a

nation state.
Article 6
of the Universal Declaration of Human Rights provides

that “everyone has the right to recognition everywhere as a person before the

law”.
Article 16
of the International Covenant on Civil and Political Rights is in

similar terms.
Article 8
of the UN Convention on the Rights of the Child

mandates that State parties undertake to respect the right of the child to
PART G

preserve his or her identity, including nationality, name and family relations as

recognized by law without unlawful interference. The importance of identity is

recognized by
Article 3
of the American Convention on Human Rights. The

Inter-American Juridical Committee (IAJC) of the Organisation of American

States (OAS) has in fact provided that:

“12. The right to identity is consubstantial to the attributes and
human dignity. Consequently it is an enforceable basic
human right erga omnes as an expression of a collective
interest of the overall international community that does not
admit derogation or suspension in cases provided in the
American Convention on Human Rights.

…

15. The Committee considers that the right to identity is,
among its most relevant implications and scope, to constitute
an autonomous right that is based on the regulations of
international law and those that derive from the actual cultural
elements considered in the domestic legal systems of the
States, in order therefore to satisfy the specificity of the
individual, with his or her rights that are unique, singular and
identifiable.”306

182 In
National Legal Services Authority v Union of India307
, this Court

held that gender identity is fundamental to and an essential component for the

enjoyment of civil rights by the transgender community. Self-determination of

identity has been held to be an essential facet of
Article 21.
In the view of this

Court:

“74. The recognition of one's gender identity lies at the heart
of the fundamental right to dignity. Gender, as already
indicated, constitutes the core of one's sense of being as well

306 Opinion on the Right to Identity, 2007, available at
http://www.oas.org/en/sla/iajc/docs/ijc_current_agenda_Right_to_Identity.pdf
307 (2014) 5 SCC 438
PART G

as an integral part of a person's identity. Legal recognition of
gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.

75.
Article 21
, as already indicated, guarantees the protection
of "personal autonomy" of an individual.
In
Anuj Garg v. Hotel
Association of India33
(SCC p. 15, paras 34-35), this Court
held that personal autonomy includes both the negative right
of not to be subject to interference by others and the positive
right of individuals to make decisions about their life, to
express themselves and to choose which activities to take
part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the
realm of personal liberty guaranteed under
Article 21
of the
Constitution of India.”

Identity assumes a complex character in a networked society. Shah adopts

the following definition of a networked society308:

“a network society is a society where the key social structures
and activities are organized around electronically processed
information networks. So it’s not just about networks or social
networks, because social networks have been very old forms
of social organization. It’s about social networks which
process and manage information and are using micro-
electronic based technologies”309.

183 In a networked society, an individual is a data subject and a quantified

self. The individual is a data subject since his or her data is stored in a

database. Shah notes that there is an ambivalence about whether the data

subject is the individual whose identity becomes the basis of validating the

data or whether the data subject is the identity of the individual as it gets

constructed through data sets. The individual becomes a quantified self

where data which is distributed across various systems is “curated” to form a

comprehensive profile of an individual.

308Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification-
the-Individual-in-the-Time-of-Networked-Governance.pdf
309Manuel Castells, Conversation with Manuel Castells, Globetrotter, available at

http://globetrotter.berkeley.edu/people/Castells/castells-con4.html
PART G

184 The Aadhaar project was intended to allow a unique identity to enable

individuals to “navigate through disconnected and often hostile governmental

database systems”. Shah notes that ever since 2009, the terms ‘identity’ and

‘identification’ were used as part of the Aadhaar project inter-changeably,

introducing “a curious conflation and interoperability”310 between these

notions. ‘Identification’ is the ability of a network device to identify an individual

by scanning unique data sets, from personal information to biometric details

such as finger print and iris scan, which would be stored in a massive

centralized database. UIDAI posited that identification took place through its

yes/no mechanism by which the centralised database would provide a

response to whether the biometric details submitted for authentication match

those in the repository. Technologically, at this level, Aadhaar was to be a

means of identification. Yet at another level, the Aadhaar project also

offered itself as providing a documentary identity to persons who may not

have possessed one at all. Shah, in the course of his article, has this to state

about the conflation between identity and identification in the Aadhaar project:

“This ambiguity and conflation cannot merely be attributed to
a semantic slip of the keyboard, but to a much larger
phenomenon which points to the construction of a new notion
of the individual, through big data streams and measures of
self-quantification. It offers us a techno-social framework
where the machine function of identification is wedded to the
human expression of identity, and thus offers an inroad into
looking at what happens when our identities are mediated,
mitigated, facilitated, and contained by the ways in which the
networked technologies of authentication and verification
operate. It is a crucial shift where the identity of a person is
ontologically defined through the logics and logistics of

310Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal
Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification-
the-Individual-in-the-Time-of-Networked-Governance.pdf
PART G

networked computation that form the Aadhaar project. This is
why the Aadhaar enrolment system, for instance, does not
check the veracity of the information that the individual gives
it. For the enrolment, the individual needs no proof to
substantiate or validate the information provided. The name,
the address, the description, etc. are empty signifiers and it is
possible for anybody to assume any identity as long as they
give the inviolable data of biometric recognition. Thus, the
identity of the person being enrolled and registered is almost
insignificant and has value only in how it would now always
identify the individual through the credentials or information
provided. The Aadhaar network governance system is
concerned only with the identifiers rather than the narrative,
iterative, forms of identity and expression, and this is where
we begin examining the ways in which identity is shaped,
understood, and used to construct the notion of an individual
in computation systems.”311

185 Identity includes the right to determine the forms through which identity

is expressed and the right not to be identified. That concept is now “flipped” so

that identification through identifiers becomes the only form of identity in the

time of database governance. This involves a radical transformation in the

position of the individual.

The submission which has been urged on behalf of the petitioners is that an

individual entitled to the protection of the freedoms and liberties guaranteed by

Part III of the Constitution must have the ability to assert a choice of the

means of identification for proving identity. Requiring an individual to prove

identity on the basis of one mode alone will, it is submitted, violate the right of

self-determination and free choice.

311 Ibid
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186 The Aadhaar (Enrolment and Update) Regulations, 2016 stipulate in

Regulation 4
, the demographic information which is required for enrolment.

Regulation 4
is in the following terms:

“4. Demographic information required for enrolment.-

(1) The following demographic information shall be collected
from all individuals undergoing enrolment (other than children
below five years of age):

(i) Name;
(ii) Date of Birth;
(iii) Gender;
(iv) Residential Address.

(2) The following demographic information may also
additionally be collected during enrolment, at the option of the
individual undergoing enrolment:

(i) Mobile number;

(ii) Email address.

(3) In case of Introducer-based enrolment, the following
additional information shall be collected:

(i) Introducer name;

(ii) Introducer’s Aadhaar number.

(4) In case of Head of Family based enrolment, the following
additional information shall be collected:

(i) Name of Head of Family;

(ii) Relationship;

(iii) Head of Family’s Aadhaar number;

(iv) One modality of biometric information of the Head of
Family.

(5) The standards of the above demographic information shall
be as may be specified by the Authority for this purpose.
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(6) The demographic information shall not include race,
religion, caste, tribe, ethnicity, language, record of
entitlement, income or medical history of the resident.”

Regulation 9
postulates that at the time of enrolment, the enrolling agency

shall inform the individual who is undergoing enrolment of (i) the manner in

which the information shall be used; (ii) the nature of recipients with whom the

information is intended to be shared during authentication; and (iii) the

existence of a right to access information. Under
Regulation 10
, a resident

seeking enrolment has to submit an application for enrolment together with

copies of supporting documents for proof of identity, address and date of birth.

Schedule II indicates a list of supporting documents which are accepted for

verification of identity, address and date of birth. If a resident does not

possess the supporting documents, enrolment is contemplated through an

introducer or a Head of Family. Schedule II contains as many as eighteen

documents which are accepted towards proof of identity and thirty three

documents as proof of address. The Aadhaar Act, it has been contended,

allows the resident to identify herself through any of the stipulated documents

for the purpose of availing an Aadhaar number. The Aadhaar number can be

availed of to secure a subsidy, benefit or service under
Section 7
, the

expenditure of which is drawn from the Consolidated Fund of India.

Article 266
of the Constitution provides as follows:

“266. Consolidated Funds and public accounts of India and of
the States
PART G

(1) Subject to the provisions of
Article 267
and to the
provisions of this Chapter with respect to the assignment of
the whole or part of the net proceeds of certain taxes and
duties to States, all revenues received by the Government of
India, all loans raised by that Government by the issue of
treasury bills, loans or ways and means advances and all
moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled the
“Consolidated Fund of India”, and all revenues received by
the Government of a State, all loans raised by that
Government by the issue of treasury bills, loans or ways and
means advances and all moneys received by that
Government in repayment of loans shall form one
consolidated fund to be entitled “the Consolidated Fund of the
State”.

(2) All other public moneys received by or on behalf of the
Government of India or the Government of a State shall be
credited to the public account of India or the public account of
the State, as the case may be
(3) No moneys out of the Consolidated Fund of India or the
Consolidated Fund of a State shall be appropriated except in
accordance with law and for the purposes and in the manner
provided in this Constitution.”

187 The Union Government is the custodian of the Consolidated Fund under

Article 266.
All revenues received by the government form part of the

Consolidated Fund. No part of its proceeds can be “appropriated except in

accordance with law and for the purpose and in the manner” which is provided

by the Constitution. As the custodian of the fund, the Union Government, it

has been submitted by the respondents, had the Aadhaar Act enacted through

Parliament.
The Act
places a restriction on the right of the individual to utilize

any other identification save and except for the Aadhaar number, for the

purpose of availing of a subsidy, benefit or service that involves an

expenditure from the Consolidated Fund. The purpose of making an Aadhaar

number mandatory for the delivery of benefits, services and subsidies funded

from the Consolidated Fund is to confirm the identity of the individual to whom
PART G

the benefit is being transferred. This was in order to ensure that the benefits

under social welfare programmes funded by the Consolidated Fund reach the

hands of targeted beneficiaries. The Union Government which expends huge

sums of money in its welfare schemes was apprised of the fact that money

which was meant for the beneficiaries was being siphoned off through ghosts

and duplicates. As a result, genuine beneficiaries would be deprived of their

basic rights. Cornering of benefits by the creation of bogus identities seriously

impacted upon social welfare measures adopted by the Union Government as

an instrument of fostering social and economic development. It was to deal

with this evil that the Aadhaar project assumed a statutory character in 2016.

Through the provisions of the law, Parliament intended that Aadhaar should

become an effective instrument of de-duplication. This is premised on the

view of the legislating body that the use of biometrics would render it difficult, if

not impossible, to obtain fake identities. Aadhaar, in other words, was

adopted as a matter of legislative policy to curb the evil of shell companies

and ghost identities. Where the State expends large sums on social welfare

projects, it has a legitimate interest in ensuring that the resources which it

deploys reach the hands of those for whom they are meant.

Thus, there are two important facets of the Aadhaar regime which must be

noticed. The first is that under
Section 3
, it is a voluntary option of the

individual to choose Aadhaar as a form of identification. However, if the

individual seeks a subsidy, benefit or service for which the expenditure is
PART G

incurred from the Consolidated Fund of India, Aadhaar becomes a mandatory

requirement. The second important feature is the requirement of informed

consent when the individual parts with identity information. The mandate of

Section 7
must be understood from the perspective of the obligation imposed

on the State to ensure effective and efficient utilization of public resources.

Article 266
reinforces that mandate in its stipulation that all monies out of the

Consolidated Fund of India can only be appropriated in accordance with law,

for the purpose of and in the manner provided by the Constitution.
The State

is a trustee of public resources. The adoption of Aadhaar is in fulfilment of the

doctrine of public trust. The state is under a bounden obligation to ensure that

its revenues which are placed in the Consolidated Fund are appropriated in

accordance with law and are not diverted for extraneous purposes. These

principles have been elucidated in the decisions of this Court in Natural

Resources Allocation, In Re, Special Reference No.1 of 2012312, Centre

for
Public Interest Litigation v Union of India313
,
Reliance Telecom

Limited v Union of India314
.

The mandate of
Section 7
is founded on a legitimate state interest. The state

has a vital interest in ensuring that public revenues are duly accounted, that

the Consolidated Fund is utilized for purposes authorized by law; that funds

for development reach genuine beneficiaries and that scarce public resources

312 (2012) 10 SCC 1
313 (2012) 3 SCC 1
314 (2017) 4 SCC 269
PART H

meant for those at the foot of the socio-economic ladder are not mis-utilized

by rent-seeking behavior.

H Proportionality

188 The petitioners have challenged the constitutional validity of the

Aadhaar project and the Aadhaar Act on various grounds including the

violation of the fundamental rights of citizens including the right to privacy and

dignity. The respondents, in defense, have argued that Aadhaar is an enabler

of identity and empowers citizens to realise various facets of the right to life,

such as the right to food and livelihood.

189 The learned Attorney General has argued that the use and

authentication of the Aadhaar number is a necessary and proportionate

measure to ensure targeted delivery of financial benefits and services and to

prevent ‘leakages’. He submits that the Aadhaar scheme satisfies the test of

proportionality: it has a rational nexus with the goal that it seeks to achieve,

and since welfare benefits enhance the right to live with dignity, the latter will

prevail over the right to privacy. Mr Rakesh Dwivedi, learned Senior Counsel

has argued that the “least intrusive test” is not accepted in Indian

jurisprudence. He submits that even if the test were to be accepted, the

exercise of determining whether a measure is the least intrusive is a technical

issue for which the Court lacks the requisite expertise. He states that this
PART H

exercise “cannot be undertaken in the courts with the assistance of lawyers

who equally have no expertise in the field” and that “such an exercise involves

research, study by the experts and courts cannot substitute the same”. Mr

Gopal Sankaranarayanan, learned Counsel, submits that the means adopted

“at the moment” are no more than is necessary for ensuring that the “avowed

objects” are served, and that they balance individual interests (fundamental

rights) with societal interests (directive principles). He further submits that the

fact there are various limitations in place ensure that “some balance” is

achieved between the breach of privacy and the object sought to be achieved.

This Court must now perform the delicate task of ‘balancing’ these competing

interests by subjecting the Aadhaar Act to the proportionality test.

H.I Harmonising conflicting rights

190 In the 2003 edition of his celebrated work, Granville Austin recounts the

words of Prime Minister Morarji Desai that freedom and bread are not

incompatible, but further adds, ‘Neither could they easily be sought

together’.315 As mentioned earlier, Granville Austin had insightfully spoken

about how the strands of the Constitution of unity-integrity, democracy and

social revolution could come in conflict with one another creating challenges

for those who work with the Constitution.316 Some of the questions inherent in

315 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University
Press (2003), at page 652
316 Ibid, at page 651
PART H

the Constitution according to him are “Democracy for whom? Justice for

whom? What is Justice? What are the appropriate means of employing the

Constitution’s means’ among citizens, between them and their

government?”317 It was due to the foresight of the framers of the Constitution

that they insisted that neither the strand of social revolution nor the strand of

democracy was to be pursued at the expense of the other.318

The ostensible conflict between bread and freedom has also been explored in

the works of Professor Upendra Baxi. In a seminal essay on human rights in

1984 which he calls the “the great gift of classical and contemporary human

thought to culture and civilization”319, he discusses the widening sphere of

human rights thought and action to new arenas and constituencies as “New

rights arise from the womb of the old.”320 He draws on the distinction between

basic human needs and human rights and argues that the constant struggle

between these two forces is the essence of the difference between the right to

be human approach and the human rights approach.321 It is rightly pointed out

that a discussion on human rights will always constitute an inherent aspect of

the larger debate of development. He opines that whatever meaning maybe

ascribed to the term “development”, it must ensure that people will not be

deprived of the right to remain human:

317 Ibid
318 Ibid
319Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, India International Centre

Quarterly, Vol. 13, No. 3/4, Pg.185, (December 1986)
320 Ibid, at page 185
321 Ibid
PART H

“Whatever it may be made to mean, “development” must at
least mean this: people will be given the right to be and
remain human. Total and continuing destitution and
impoverishment exposes people to a loss of their humanity. In
no society that takes human rights seriously should there be
allowed a state of affairs where human beings become sub-
human—that is, when they perforce have to surrender even
those sonorously recited "inalienable" rights of man… The
expression "human rights" presupposes a level at which
biological entities are bestowed with the dignity of being
called human. The bearers of human rights must have an
implicit right to be and remain human, allowing them some
autonomy of choice in planning survival.”322

Thus, the broader matrix of human rights includes within it the inalienable and

fundamental right to always ‘be and remain human’. Professor Upendra Baxi

notes that this broader debate between human rights and the ‘right to be

human’ is reflective of the bread vs freedom conflict. It is noted that

historically, freedom might have been chosen over bread due to the vast

enumeration of liberal rights it includes, despite the acute awareness that

without bread, freedom of speech and assembly, of association, of

conscience and religion, of political participation, symbolic adult suffrage may

all be meaningless.323 At the same time, Baxi points out the danger in

choosing bread at the cost of freedom, given that historically in the absence of

freedom, human beings have been subject to the most egregious indignities:

“The provision of "bread" may justify indefinite
postponement of the provision of any kind of
"freedom". In the absence of such freedom, even the
promised "bread" may not be realized by the masses;
indeed, they even lose, in the process, their power to
protest at the indignity of regime sponsored starvation.
This, indeed, is a possibility which has materialized
more often than not.”324

322 Ibid, at page 187
323 Ibid, at page 186
324 Ibid, at page 190
PART H

Baxi concludes that the choice between bread and freedom is a false

antithesis. The challenge is not a choice in the abstract between bread and

freedom but rather the balancing of the two:325

“But the issues are not really "bread" and/or "freedom" in the
abstract, but rather who has how much of each, for how long,
at what cost to others, and why. Some people have both
"bread" and "freedom"; others have "freedom" but little
"bread" or none at all; yet others have half a loaf (which is
better than none, surely!) with or without freedom; and still
others have a precarious mix where "bread" is assured if
certain (not all) freedoms are bartered.”326

It is the foremost duty of the State to work towards achieving and maintaining

a fine balance, taking into account these myriad considerations. The State

must always be guided by the knowledge and sense of duty that in a true

democracy, the citizens cannot be made to choose between rights and needs,

as they are equally entitled to both. As the sentinel of justice and protector of

fundamental rights, it is the responsibility of this Court to act as a check and

ensure that government action or inaction does not endanger or threaten to

disturb the balance that the Constitution seeks to achieve. It is imperative to

remember that both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing

to our citizens the gamut of human rights and freedoms that make human

existence meaningful.

191 While exercising judicial review, courts are often confronted with

situations involving conflicts between rights, tensions between individuals

arising from the assertion of rights and discord arising out of the assertion of
325 Ibid, at page 186
326 Ibid, at page 186
PART H

the same right by two or more individuals. Conflicts between rights arise when

the assertion of a fundamental human right by an individual impacts upon the

exercise of distinct freedoms by others. The freedom of one individual to

speak and to express may affect the dignity of another. A person may be

aggrieved when the free exercise of the right to speak by someone impinges

upon his or her reputation, which is integral to the right to life under
Article 21.

A conflict will, in such a situation, arise between a right which is asserted

under
Article 19(1)(a)
by one citizen and the sense of injury of another who

claims protection of the right to dignity under
Article 21.
Conflicts also arise

when the exercise of rights is perceived to impact upon the collective identity

of another group of persons. Conflicts may arise when an activity or conduct

of an individual, in pursuit of a freedom recognised by the Constitution,

impinges upon the protection afforded to another individual under the rubric of

the same human right. Such a situation involves a conflict arising from a

freedom which is relatable to the same constitutional guarantee. Privacy is an

assertion of the right to life under
Article 21.
The right to a dignified existence

is also protected by the same Article. A conflict within
Article 21
may involve a

situation when two freedoms are asserted as political rights. A conflict may

also envisage a situation where an assertion of a political right under the

umbrella of the right to life stands in conflict with the assertion of an economic

right which is also comprehended by the protection of life under the

Constitution.
PART H

Such conflicts require the court to embark on a process of judicial

interpretation. The task is to achieve a sense of balance. An ideal situation

would be one which would preserve the core of the right for both sets of

citizens whose entitlements to freedom appear to be in conflict. Realistically,

drawing balances is not a simple task. Balances involve sacrifices and the

foregoing of entitlements. In making those decisions, a certain degree of

value judgment is inevitable. The balance which the court draws may be open

to criticism in regard to its value judgment on the relative importance ascribed

to the conflicting rights in judicial decision making. In making those fine

balances, the court can pursue an objective formulation by relying upon those

values which the Constitution puts forth as part of its endeavour for a just

society. Our Constitution has in Part III recognised the importance of political

freedom. In Part IV, the Constitution has recognised our social histories of

discrimination and prejudice which have led to poverty, deprivation and the

absence of a dignified existence to major segments of society. Holding Part III

in balance with Part IV is integral to the vision of social and economic justice

which the Constitution has sought to achieve consistent with political

democracy. Difficult as this area is, a balancing of rights is inevitable, when

rights asserted by individuals are in conflict.

192 Several decisions of this Court over the last two decades have sought

to bring order to the clash between fundamental rights.
In People’s Union for
PART H

Civil Liberties (PUCL) v Union of India327
, this Court was called upon to

balance the right to information of voters (requiring the disclosure of the

assets of candidates and their spouses at an election) with the right to privacy

implicit in
Article 21.
In drawing the balance, a bench of three Judges of this

Court gave primacy to the entitlement of citizens to be informed about the

affairs of those who would represent them in electoral democracy. As the

Court held:

“121…By calling upon the contesting candidate to disclose
the assets and liabilities of his/her spouse, the fundamental
right to information of a voter/citizen is thereby promoted.
When there is a competition between the right to privacy of an
individual and the right to information of the citizens, the
former right has to be subordinated to the latter right as it
serves the larger public interest. The right to know about the
candidate who intends to become a public figure and a
representative of the people would not be effective and real if
only truncated information of the assets and liabilities is
given.”328

The Court held that the provision contained in the
Representation of People

Act
1951 for a disclosure of assets and liabilities only to the Speaker or to the

Chairman of the House did not adequately protect the citizen’s right to

information, resulting in a violation of the guarantee of free speech and

expression.

193 In
Thalappalam Service Cooperative Bank Limited v State of

Kerala329
, this Court dealt with a conflict between the right to information

327 (2003) 4 SCC 399
328 Ibid, at page 472
329 (2013) 16 SCC 82
PART H

[(protected by
Article 19(1)(a)]
and the right to privacy (protected by Article

21). The Court observed:

“61. The right to information and right to privacy are,
therefore, not absolute rights, both the rights, one of which
falls under
Article 19(1)(a)
and the other under
Article 21
of
the Constitution of India, can obviously be regulated,
restricted and curtailed in the larger public interest. Absolute
or uncontrolled individual rights do not and cannot exist in any
modern State. Citizens' right to get information is statutorily
recognised by the
RTI Act
, but at the same time limitations
are also provided in the Act itself, which is discernible from
the Preamble and other provisions of the Act.”330

The Court held that the balance between the right to information and the right

to privacy is drawn under the
Right to Information Act
2005: if the information

which is sought is personal and has no relationship with a public activity or

interest, a public authority is not legally bound to provide such information. If

the information which is sought is to be made available in the larger public

interest, reasons have to be recorded because the person from whom the

information is sought has a right to privacy guaranteed by
Article 21.

Thalappalam considered a conflict arising between two fundamental rights,

the right to information protected by
Article 19(1)(a)
and the right to privacy

which is protected by
Article 21.

194 More recently, in
G Sundarrajan v Union of India331
, a two judge

Bench considered a challenge to the establishment of a nuclear power plant

on the ground that it would violate the right to life guaranteed by
Article 21.

Noting that there was a need to draw a balance between the assertion of

330 Ibid, at page 112
331 (2013) 6 SCC 620
PART H

several rights including the protection of the environment, the Court observed

that the larger public interest must prevail:

“198. We have to resolve the issue whether the establishment
of NPP would have the effect of violating the right to life
guaranteed under
Article 21
to the persons who are residing
in and around Kudankulam or by establishing the NPP, it will
uphold the right to life in a larger sense. While balancing the
benefit of establishing KKNPP Units 1 to 6, with right to life and
property and the protection of environment including marine
life, we have to strike a balance, since the production of
nuclear energy is of extreme importance for the economic
growth of our country, alleviate poverty, generate
employment, etc. While setting up a project of this nature, we
have to have an overall view of larger public interest rather
than smaller violation of right to life guaranteed under
Article
of the Constitution.”332

In
Subramanian Swamy v Union of India333
, the learned Chief Justice,

speaking for a Bench of two judges emphasised the need for a sense of

balance when the assertion of fundamental rights by two citizens is in conflict:

“137…One fundamental right of a person may have to coexist
in harmony with the exercise of another fundamental right by
others and also with reasonable and valid exercise of power
by the State in the light of the directive principles in the
interests of social welfare as a whole. The Court's duty is to
strike a balance between competing claims of different
interests.”334

Noting that the “balancing of fundamental rights is a constitutional necessity”,

the Court has attempted to harmonise reputation as an intrinsic element of the

right to life under
Article 21
with criminal defamation as a restriction under

Article 19(2).

332 Ibid, at page 714
333 (2016) 7 SCC 221
334 Ibid, at page 319
PART H

195 In Asha Ranjan v Chandrakeshwar Prasad335, this Court dealt with a

case involving a conflict between the fundamental rights of two individuals

within
Article 21.
There was on the one hand an assertion of the right to life on

the part of an individual accused of an offence, who claimed a right to a fair

trial, and the protection of the interests of the victim which was also relatable

to the same fundamental right under
Article 21.
In resolving the conflict, the

Court gave expression to the need to preserve “paramount collective

interests”:

“61…circumstances may emerge that may necessitate for
balancing between intra-fundamental rights. It has been
distinctly understood that the test that has to be applied while
balancing the two fundamental rights or inter fundamental
rights, … may be different than the principle to be applied in
intra-conflict between the same fundamental right. To
elaborate, as in this case, the accused has a fundamental
right to have a fair trial under
Article 21
of the Constitution.
Similarly, the victims who are directly affected and also form a
part of the constituent of the collective, have a fundamental
right for a fair trial. Thus, there can be two individuals both
having legitimacy to claim or assert the right. The factum of
legitimacy is a primary consideration. It has to be
remembered that no fundamental right is absolute and it can
have limitations in certain circumstances. Thus, permissible
limitations are imposed by the State. The said limitations are
to be within the bounds of law. However, when there is intra-
conflict of the right conferred under the same article, like fair
trial in this case, the test that is required to be applied, we are
disposed to think, it would be “paramount collective interest”
or “sustenance of public confidence in the justice
dispensation system”.336

196 These decisions indicate that the process of resolving conflicts arising

out of the assertion of different fundamental rights and conflicts within the

same fundamental right, necessarily involves judicial balancing. In finding a

335 (2017) 4 SCC 397
336 Ibid, at page 433
PART H

just balance this Court has applied norms such as the ‘paramount public

interest’. In seeking to draw the balance between political freedoms and

economic freedoms, the Court must preserve the euphony between

fundamental rights and directive principles. It is on their co-existence that the

edifice of the Constitution is founded. Neither can exist without the other.

Democracy rejects the totalitarian option of recognising economic entitlements

without political liberty. Economic rights have become justiciable because of

the constitutional guarantees founded on freedom and the rule of law. The

Constitution is founded on democratic governance and is based on the

protection of individual freedom. Freedom comprehends both fundamental

political freedoms as well as basic human rights. A just balance between the

two is integral to the fulfilment of India’s constitutional commitment to realise

human liberty in a social context which is cognizant of the histories of

discrimination and prejudice suffered by large segments of our society. Where

the question is related to the limiting the right to privacy, Puttaswamy requires

the test of proportionality. It has, therefore, to be tested whether the Aadhaar

scheme fulfils the test of proportionality.

197 The test of proportionality, which began as an unwritten set of general

principles of law, today constitutes the dominant “best practice” judicial

standard for resolving disputes that involve either a conflict between two rights

claims or between a right and a legitimate government interest. 337 It has

337JudMathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of
Balancing, Emory Law Journal, Vol. 60 (2011)
PART H

become a “centrepiece of jurisprudence” across the European continent as

well as in common law jurisdictions including the United Kingdom, South

Africa and Israel.338 Proportionality is the “defining doctrinal core of a

transnational rights-based constitutionalism”339. It has been raised to the rank

of a fundamental constitutional principle,340 and represents a global shift from

a culture of authority to a culture of justification.341 Servin argues that

jurisprudence on privacy has evolved from the “right to be let alone”, to now

being centered around the principle of proportionality.342

198 Subjecting the Aadhaar scheme to the test of proportionality does not

mean that the Court is second-guessing the wisdom of the legislature. State

action must be subjected to judicial scrutiny to ensure that it passes

constitutional muster. The test of proportionality stipulates that the nature and

extent of the State’s interference with the exercise of a right (in this case, the

rights to privacy, dignity, choice, and access to basic entitlements) must be

proportionate to the goal it seeks to achieve (in this case, purported plugging

of welfare leakage and better targeting).

338Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia
Journal of Transnational Law, Vol. 47 (2008)
339Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of

Balancing, Emory Law Journal, Vol. 60 (2011)
340 Ibid
341Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of Justification, American Journal of

Comparative Law Vol. 59 (2011) (cited in); Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of
Rights, South African Journal on Human Rights, Vol. 10 (1994)
342Andrew B. Serwin, Privacy 3.0 – The Principle of Proportionality, University of Michigan Journal of Law

Reform, Vol. 42 (2009)
PART H

Within the framework of constitutional interpretation, proportionality serves as

a test to determine the extent to which fundamental rights can be limited in the

face of legislative intervention which purports to further social and public

interest aims. Aharon Barak, the former Chief Justice of the Supreme Court of

Israel has described the importance of the proportionality test as thus:343

“Examination of the test of proportionality (in the narrow
sense) returns us to first principles that are the foundation of
our constitutional democracy and the human rights … Our
democracy is characterized by the fact that it imposes limits
on the ability to violate human rights; that it is based on the
recognition that surrounding the individual there is a wall
protecting his right, which cannot be breached even by
majority.”

In applying the proportionality test, the Court cannot mechanically defer to the

State’s assertions. Especially given the intrusive nature of the Aadhaar

scheme, such deference to the legislature is inappropriate. The State must

discharge its burden by demonstrating that rights-infringing measures were

necessary and proportionate to the goal sought to be achieved.

H.2 Proportionality standard in Indian jurisprudence

199 In India, the principle of proportionality has a long jurisprudential history

which has been adverted to in a judgment344 of this Court:

“On account of a Chapter on Fundamental Rights in Part III of
our Constitution right from 1950, Indian Courts did not suffer
from the disability similar to the one experienced by English
Courts for declaring as unconstitutional legislation on the
principle of proportionality or reading them in a manner

343 Adalah v. The Minister of Interior, HCJ 7052/03, English translation available at
http://elyon.court.gov.il/files_eng/03/520/070a47/03070520.a47.pdf
Om Kumar v Union of India
, (2001) 2 SCC 386
PART H

consistent with the charter of rights. Ever since 1950, the
principle of ‘proportionality’ has indeed been applied
vigorously to legislative (and administrative action) in
India. While dealing with the validity of legislation infringing
fundamental freedoms enumerated in
Article 19(1)
of the
Constitution of India…this court had occasion to consider
whether the restrictions imposed by legislation were
disproportionate to the situation and were not the least
restrictive of the choices.” (Emphasis supplied)

The early decisions of this Court may not have used the expression

“proportionality”. But the manner in which the court explained what would be a

permissible restraint on rights indicates the seeds or the core of the

proportionality standard. Proportionality has been the core of reasonableness

since the 1950s.

Chintaman Rao v State of Madhya Pradesh345
concerned

a State legislation which empowered the government to prohibit people in

certain areas from manufacturing bidis. The object of the law was to ensure

the supply of adequate labour for agricultural purposes in areas where bidi

manufacturing was an alternative source of employment for persons likely to

be engaged in agricultural labour. The Court held that the State need not have

prohibited all labourers from engaging in bidi manufacturing throughout the

year in order to satisfy the objective. Justice Mahajan, on behalf of a

Constitution Bench held:

“6.The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot
be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom

345 1950 SCR 759
PART H

guaranteed in
article 19(1)(g)
and the social control permitted
by clause (6) of
article 19
, it must be held to be wanting in
that quality.” (Emphasis supplied)
State of Madras v V G Row346
considered whether the action of the

Tamil Nadu government in declaring an association unlawful violated
Article

19(1)(c)
of the Constitution. Chief Justice Patanjali Sastri, speaking for the

Constitution Bench, propounded what has come to be regarded as a classic

statement of the principle of proportionality in our law:

“15…the test of reasonableness, wherever prescribed, should
be applied to each individual statute impugned, and no
abstract standard, or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all
enter into the judicial verdict...” (Emphasis supplied)

The decision of the Constitution Bench in
State of Bihar v Kamla Kant

Misra347
concerned a challenge to the second part of sub-section (6) of

Section 144
of the Code of Criminal Procedure on the ground that it violated

sub-clauses (b), (c) and (d) of Clause (1) of
Article 19
of the Constitution.

Justice K S Hegde, speaking for the majority, observed:

“15.One of the important tests to find out whether a restriction
is reasonable is to see …whether the restriction is in
excess of the requirement or whether it is imposed in an
arbitrary manner”.348 (Emphasis supplied)

346 1952 SCR 597
347 (1969) 3 SCC 337
348 Ibid, at page 345
PART H

201 In
Mohammed Faruk v State of Madhya Pradesh349
a Constitution

Bench of this Court held that in determining the proportionality of a measure

restricting an individual’s right under
Article 19(1)(g)
of the Constitution, the

factors to be taken into consideration would include whether a less drastic

restriction would have served the purpose. As the Court held:

“10…The Court must in considering the validity of the
impugned law imposing a prohibition on the carrying on
of a business or profession, attempt an evaluation of its
direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public
interest sought to be ensured in the light of the object
sought to be achieved, the necessity to restrict the
citizen's freedom, [...],the possibility of achieving the
object by imposing a less drastic restraint , [...] or
that a less drastic restriction may ensure the object
intended to be achieved.”350
(Emphasis supplied)

In
Bishambhar Dayal Chandra Mohan v State of Uttar Pradesh351
,

“reasonable restriction” was held to mean that the limitation imposed on the

enjoyment of a right should not be arbitrary or of an excessive nature, beyond

what is required in the interests of the public.

202 The decision in
Om Kumar v Union of India352
concerned the quantum

of punishment imposed in departmental disciplinary proceedings. Justice M.

Jagannadha Rao, speaking for a two judge Bench, defined proportionality in

the following terms:

“28. By 'proportionality', we mean the question whether, while
regulating exercise of fundamental rights, the appropriate or

349 (1969) 1 SCC 853
350 Ibid, at page 857
351 (1982) 1 SCC 39
352 (2001) 2 SCC 386
PART H

least restrictive choice of measures has been made by the
legislature or the administrator so as to achieve the object of
the legislation or the purpose of the administrative order, as
the case may be. Under the principle, the Court will see that
the legislature and the administrative authority 'maintain a
proper balance between the adverse effects which the
legislation or the administrative order may have on the rights,
liberties or interests of persons keeping in mind the purpose
which they were intended to serve'. The legislature and the
administrative authority are however given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the Court. That is what is meant by proportionality.”353
(Emphasis supplied)

In
Teri Oat Estates v U.T., Chandigarh354
, this Court adopted a similar

interpretation of proportionality.

203 In
Modern Dental College and Research Centre v State of Madhya

Pradesh,355
a Constitution Bench of this Court while dealing with a challenge

to the vires of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha

(Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, held

that proportionality is the correct test to apply in the context of
Article 19(6).

Justice A K Sikri, speaking for the Court, held thus :

“60…Thus, while examining as to whether the impugned
provisions of the statute and Rules amount to reasonable
restrictions and are brought out in the interest of the general
public, the exercise that is required to be undertaken is the
balancing of fundamental right to carry on occupation on the
one hand and the restrictions imposed on the other hand.
This is what is known as 'Doctrine of Proportionality'.
Jurisprudentially, 'proportionality' can be defined as the
set of Rules determining the necessary and sufficient
conditions for limitation of a constitutionally protected

353 Ibid, at page 399
354 (2004) 2 SCC 130
355 (2016) 7 SCC 353
PART H

right by a law to be constitutionally permissible...”356
(Emphasis supplied)

While expounding on the theory of proportionality, Justice AK Sikri referred to

Aharon Barak’s seminal book357 on proportionality:

“60…A limitation of a constitutional right will be
constitutionally permissible if: (i) it is designated for a proper
purpose; (ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that
purpose; (iii) the measures undertaken are necessary in that
there are no alternative measures that may similarly achieve
that same purpose with a lesser degree of limitation; and
finally (iv) there needs to be a proper relation ('proportionality
stricto sensu' or 'balancing') between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.”358

Justice Sikri held that laws limiting constitutional rights must satisfy the test of

proportionality:

“63…The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose, and if
the measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are
necessary….359

64. The exercise which, therefore, to be taken is to find out as
to whether the limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic society and such an exercise involves the
weighing up of competitive values, and ultimately an
assessment based on proportionality i.e. balancing of
different interests.”360 (Emphasis supplied)

356 Ibid, at page 412
357 Aharon Barak, Proportionality: Constitutional Rights and their Limitations, Cambridge University Press (2012)
358 Ibid, at page 412
359 Ibid, at page 414
360 Ibid, at page 415
PART H

204 In KS Puttaswamy v Union of India361, one of us (Chandrachud J.),

speaking for four judges, laid down the tests that would need to be satisfied

under our Constitution for violations of privacy to be justified. This included the

test of proportionality:

“325…A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of
Article 21
an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under
Article 21.
An invasion of life or
personal liberty must meet the three-fold requirement of (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.”362

The third principle (iii above) adopts the test of proportionality to ensure a

rational nexus between the objects and the means adopted to achieve them.

The essential role of the test of proportionality is to enable the court to

determine whether a legislative measure is disproportionate in its interference

with the fundamental right. In determining this, the court will have regard to

whether a less intrusive measure could have been adopted consistent with the

object of the law and whether the impact of the encroachment on a

fundamental right is disproportionate to the benefit which is likely to ensue.

The proportionality standard must be met by the procedural and substantive

aspects of the law.

361 (2017) 10 SCC 1
362 Ibid, at page 509
PART H

Justice Sanjay Kishan Kaul, in his concurring opinion, suggested a four-

pronged test as follows363:

“(i)The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;

(iii) The extent of such interference must be proportionate to
the need for such interference;

(iv) There must be procedural guarantees against abuse of
such interference.”

The ‘test of proportionality’ is a judicially-entrenched principle which has

invigorated fundamental rights jurisprudence in the country. The application of

the proportionality standard in rights-based adjudication is well-recognised

across diverse jurisdictions.

H.3 Comparative jurisprudence

205 Since some of the concerns raised by the Aadhaar scheme have arisen

for the first time in India, it would be appropriate to discuss judgments of

foreign jurisdictions which have inquired into the proportionality of measures

many of them similar to those prescribed under the Aadhaar Act.

206 The Privy Council formulated the parameters of proportionality in Elloy

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,

Lands and Housing,364 elaborating a three-fold test:

“whether: (i) the legislative objective is sufficiently important to
justify limiting a fundamental right; (ii) the measures designed

363 Ibid, at para 638
364 [1999] 1 AC 69
PART H

to meet the legislative objective are rationally connected to it;

and (iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.”

Subsequently in Huang (FC) v Secretary of State for the Home

Department,365 the House of Lords added a fourth parameter which is “the

need to balance the interests of society with those of individuals and groups.”

207 In the Federal Census Act Case (Volkszählungsurteil),366 the

Federal Constitutional Court of the Federal Republic of Germany dealt with a

challenge to the German Federal Census Act, 1983, which provided for

collection of citizens’ basic personal information, including, inter alia, source of

income, occupation, supplementary employment, educational background and

hours of work. Certain provisions provided for transmission of statistical data

to local governments for the purposes of regional planning, surveying,

environmental protection, and redrawing of election districts. The Court struck

down provisions permitting transfer of statistical data to local authorities on

the ground that they enabled authorities to compare census data with local

housing registries. The Court observed that the combination of statistical data

and a personalized registry could lead to the identification of particular

persons, which would lead to a chilling effect upon individuals’ right to

informational self-determination.

365 [2007] UKHL 11
366 (1983) 65 BVerfGE 1
PART H

The Court developed a ‘fundamental right of informational self-determination’

drawing from
Articles 1(1)
and
2(1)
of the German Constitution, which protect

the fundamental right to human dignity and the right to freely develop one’s

personality. Explaining the importance of this right in the context of risks

occasioned by modern data processing, the Court noted that:

“The freedom of individuals to make plans or decisions in
reliance on their personal powers of self-determination may
be significantly inhibited if they cannot with sufficient certainty
determine what information on them is known in certain areas
of their social sphere and in some measure appraise the
extent of knowledge in the possession of possible
interlocutors. A social order in which individuals can no longer
ascertain who knows what about them and when and a legal
order that makes this possible would not be compatible with
the right to informational self-determination…This would not
only restrict the possibilities for personal development of
those individuals but also be detrimental to the public good
since self-determination is an elementary prerequisite for the
functioning of a free democratic society predicated on the
freedom of action and participation of its members…The
fundamental right guarantees in principle the power of
individuals to make their own decisions as regards the
disclosure and use of their personal data.”367

The Court, while recognizing the right to informational self-determination,

observed that distinct silos of data “can be pieced together with other data

collections particularly when individual integrated information systems are

built up – to add up to a partial or virtually complete personality profile,” and

that too with, “the person concerned having no means of controlling its truth

and application.”368 Of crucial importance is the Court’s observation that the

right to informational self-determination is particularly endangered because

367Jürgen Bröhmer et al., “BVerfGE 65, 1 -
Census Act
” in 60 Years German Basic Law: The German
Constitution and its Court - Landmark Decisions of the Federal Constitutional Court of Germany in the Area of
Fundamental Rights (Suhainah Wahiduddin ed.), (2012) at Pages 147-148, available at
http://www.kas.de/wf/doc/kas_32858-1522-1-30.pdf?121123115540
Census Act
Case, (1983)
PART H

in reaching decisions, one no longer has to rely on manually collected

registries and files. Today, the technical means of storing individual

statements about personal or factual situations of a certain or verifiable

person with the aid of automatic data processing are practically unlimited and

can be retrieved in a matter of seconds irrespective of distances.369

The Court noted, however, that the right to informational self-determination is

not absolute and that public sector entities could collect personal data under

certain conditions. The Court held that there must be a statutory basis for this

informational activity, and that it must satisfy the principle of proportionality.

On the need for a statutory basis, the Court held that:

“The use of the data is limited to the purpose specified by law.
If for no other reason than because of the dangers associated
with automated data processing, protection is required
against unauthorized use - including protection against such
use by other governmental entities - through a prohibition on
the transfer and use of such data”370
“Clearly defined conditions must be created for processing to
ensure that individuals do not become mere data subjects in
the context of the automated collection and processing of the
information pertaining to their person. Both the absence of a
connection with a specific purpose that can be recognized
and verified at all times and the multifunctional use of data,
reinforce the tendencies that are to be checked and restricted
by data-protection legislation, which represents the concrete
manifestation of the constitutionally guaranteed right to
informational self-determination.”371

On the principle of proportionality, the Court held that:

“The legislature must in its statutory regulations respect the
principle of proportionality. This principle, which enjoys
constitutional status, follows from the nature of the
Census Act
Case, (1983)
370 Ibid, at page 150.

371 Ibid, at page 151
PART H

fundamental rights themselves, which, as an expression of
the general right of the public to freedom from interference by
the state, may be restricted by the public powers in any given
case only insofar as indispensable for the protection of public
interests … In view of the threats described above that arise
from the use of automated data processing, the legislature
must more than was the case previously, adopt organizational
and procedural precautions that work counter to the threat of
violation of the right of personality …”372
“The survey program of the 1983
Census Act
also satisfies, to
the extent relevant to the matter under review, the principle of
proportionality. A measure to achieve the intended purpose
must therefore be suitable and necessary; the intensity of the
attendant action may not be disproportionate to the
importance of the matter and the compromises imposed upon
the public.”373

The Court concluded that according to the principles of purpose specification

and proportionality, not only must the purpose for which data is being

collected be specified at the time of collection, but the data acquired must also

not exceed that which is absolutely necessary for accomplishing the specified

purpose. In light of this, the Court directed the German Parliament to amend

the law in certain particulars before the census could be carried out, and to

close all loopholes in the law that may lead to abuses in the collection,

storage, use and transfer of personal data.

208 The ECtHR dealt with whether retention of DNA samples of individuals

who were arrested but who were later acquitted or had charges against them

dropped was a violation of the right to privacy. In S and Marper v United

372 Ibid, at page 149
373 Ibid, at page 154
PART H

Kingdom,374 the ECtHR noted the “blanket and indiscriminate nature of the

power of retention”:

“The material may be retained irrespective of the nature or
gravity of the offence with which the individual was originally
suspected or of the age of the suspected offender;
fingerprints and samples may be taken—and retained—from
a person of any age, arrested in connection with a recordable
offence, which includes minor or non-imprisonable offences.
The retention is not time-limited; the material is retained
indefinitely whatever the nature or seriousness of the offence
of which the person was suspected. Moreover, there exist
only limited possibilities for an acquitted individual to have the
data removed from the nationwide database or the materials
destroyed; in particular, there is no provision for independent
review of the justification for the retention according to
defined criteria, including such factors as the seriousness of
the offence, previous arrests, the strength of the suspicion
against the person and any other special circumstances.”375

The Court concluded that the retention constituted a disproportionate

interference with the Applicants’ right to privacy:

“125…That the blanket and indiscriminate nature of the
powers of retention of the fingerprints, cellular samples and
DNA profiles of persons suspected but not convicted of
offences, as applied in the case of the present applicants,
fails to strike a fair balance between the competing public and
private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this
regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants’ right to
respect for private life and cannot be regarded as
necessary in a democratic society…”
(Emphasis supplied)

The Court rejected the government’s arguments that fingerprints constituted

neutral, objective, irrefutable and unintelligible material, holding that they

contained unique information about an individual, allowing their precise

374 (2008) 48 EHRR 1169
375 Ibid, at Paragraph 119
PART H

identification in certain circumstances. The Court concluded that the collection

of fingerprints was therefore capable of affecting private life, and retention of

such information without consent “cannot be regarded as neutral or

insignificant.”

209 In 2012, the French Constitutional Council (“Council”) – the body that

reviews the constitutionality of French laws – declared four provisions of the

Identity Protection Act, which proposed the introduction of a new national

biometric ID for citizens, to be unconstitutional.376
Articles 3
and
were

among the provisions that were struck down.
Article 3
authorized that the

national ID card may contain data which would enable the holder to identify

himself or herself on electronic communication networks or use his or her

electronic signature. The Article stated that:

“If requested by its holder, the national identity card may also
contain data, stored separately, enabling it to identify itself on
electronic communication networks and to affix its electronic
signature. Upon each use, the interested party shall decide
which identification data are to be transmitted electronically.”

The Council observed that
Article 3
did not stipulate the nature of the data that

was being collected, nor did it provide any guarantee of maintaining

confidentiality. Thus, the Council declared
Article 3
to be unconstitutional:

“that the provisions of
Article 3
do not specify either the
nature of the “data” through which these functions may be
implemented or the guarantees ensuring the integrity and
confidentiality of this data; that they do not define in any

376Decision No. 2012-652 DC of 22 March 2012 by Le Conseil Constitutionnel, available at http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/english/case-law/sample-of-decisions-in-relevant-areas-
dc/decision/decision-no-2012-652-dc-of-22-march-2012.105428.html
PART H

greater detail the conditions under which the persons
implementing these functions are to be authenticated,
especially when they are minors or are subject to legal
protection; that accordingly, Parliament acted in excess of its
powers; that accordingly
Article 3
must be ruled
unconstitutional;”

Article 5
allowed for the establishment of a database of personal information

which would include, in addition to the marital status and residence of the

holder, their height, eye colour, fingerprints and photograph for the issuance

of French passports and national ID cards and for conducting investigations

involving certain offences if authorised by a public prosecutor or a judge.

The Council relied on
Article 34
of the French Constitution to hold that it was

incumbent upon the Parliament to strike a balance between safeguarding

public order and bringing offenders to justice on one hand, and the right to

privacy on the other. The Council placed reliance on the Declaration of the

Rights of Man and the Citizen of 1789.
Article 2
of the Declaration states “The

aim of every political association is the preservation of the natural and

imprescriptible rights of Man. These rights are liberty, property, safety and

resistance to oppression”. The Council held that the liberty proclaimed by

Article 2
includes the right to respect for private life, and accordingly, that “the

collection, registration, conservation, consultation and communication of

personal data must be justified on grounds of general interest and

implemented in an adequate manner, proportionate to this objective.” The

Council held that
Article 5
violated the French Constitution as the nature of the

data collected was such that it would facilitate the identification of French
PART H

citizens on the basis of their fingerprints, thus breaching the right to respect

for private life:

“Considering however that, given its object, this database
containing personal data is intended to collect data relating to
almost all of the population of French nationality; that since
the biometric data registered in this file, including in
particular fingerprints, are themselves liable to be
compared with physical traces left involuntarily by an
individual or collected unbeknown to him, they are
particularly sensitive; that the technical characteristics of
this database as defined by the contested provisions
enable it to be consulted for purposes other than the
verification of an individual's identity; that the provisions of
the act referred authorise this database to be consulted or
viewed not only in relation to the issue or renewal of identity
and travel documents or to verify the holder of such a
document, but also for other purposes of an administrative
nature or by the investigating police;…
…having regard to the nature of the data registered, the
scope of this processing, its technical characteristics and the
conditions under which it may be consulted, the provisions of

Article 5
violate the right to respect for privacy in a manner
which cannot be regarded as proportionate to the goal
pursued; that accordingly,
Articles 5
and
of the act must be
ruled unconstitutional…” (Emphasis supplied)

Subsequently, Law 2012-410 of March 27, 2012, on Identity Protection was

published in the official gazette of France, without
Articles 3
and
, which had

been rendered unconstitutional by the Council.377

210 Aycaguer v France378 concerned the applicant’s refusal to undergo

biological testing, the result of which was to be included in the national

computerised DNA database. As a result of his refusal, he was convicted. The

ECtHR held that the regulations on the storage of DNA profiles did not provide

377LOI n° 2012-410 du 27 mars 2012 relative à la protection de l'identité, available at
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000025582411&dateTexte=&categorieLien
=id.

378 Application no. 8806/12
PART H

individuals with sufficient protection, due to its duration and the fact that the

data could not be deleted. The Court concluded that the regulations failed to

strike a balance between competing public and private interests and held,

unanimously, that there had been a violation of
Article 8 (right to respect for

private life)
of the European Convention on Human Rights.

211 The Conseil d'Etat379 in Association pour la promotion de l'image 380

was asked whether a decree regulating the use and storage of data from

biometric passports was lawful. One of the stipulations of the decree was that

eight fingerprints were stored by the authorities, while only two were required

for the passport. The Conseil d'Etat stated that the collection and retention of

six more fingerprints to be centrally stored was irrelevant and excessive in

relation to the purpose of the computerized database.

212 In Digital Rights Ireland Ltd v Minister,381 the Court of Justice of the

European Union held that the EU legislature had exceeded the limits of the

principle of proportionality in relation to certain provisions of the Charter of

Fundamental Rights of the European Union –
Articles 7
, 8
and
52(1)
– by

adopting the Data Retention Directive. According to the Directive, member

states were obliged to store citizens’ telecommunications data for a minimum

of 6 months and a maximum of 24 months. The Directive empowered police

379The Conseil d’Etat (Council of State) is a body of the French government that acts as legal advisor of the
executive branch and as the supreme court for administrative justice
380 Conseil d’ Etat in France, 26 October 2011
381 C‑293/12 and C‑594/12
PART H

and security agencies to request access to details such as IP address and

time of use of all e-mails, phone calls and text messages sent or received.

The Court applied the test of proportionality to the measures. It was noted

that metadata allows officials to make precise conclusions about a person’s

private life, and dragnet data collection creates a chilling effect based on the

sense that one’s life is subject to surveillance at all times. On the nature of

metadata, the Court observed that:

“Taken as a whole, [metadata] may allow very precise
conclusions to be drawn concerning the private lives of the
persons whose data has been retained, such as the habits of
everyday life, permanent or temporary places of residence,
daily or other movements, the activities carried out, the social
relationships of those persons and the social environments
frequented by them.”382

The Court found that surveillance serves an important public interest – public

security – and that the right to security is itself a fundamental right under

Article 6
of the Charter.383 However, the Court adopted a two-pronged

proportionality test to conclude that the Directive’s retention and access

requirements were not proportional to that interest.

“…According to the settled case-law of the Court, the
principle of proportionality requires that acts of the EU
institutions be appropriate for attaining the legitimate
objectives pursued by the legislation at issue and do not
exceed the limits of what is appropriate and necessary in
order to achieve those objectives.”384

382 Ibid, at para 27
383 Ibid, at para 42
384 Ibid, at para 46
PART H

The retention measure was held to be unnecessary to fulfill the objective of

fighting against serious crime:

“As regards the necessity for the retention of data required by
Directive 2006/24, it must be held that the fight against
serious crime, in particular against organised crime and
terrorism, is indeed of the utmost importance in order to
ensure public security and its effectiveness may depend to a
great extent on the use of modern investigation techniques.
However, such an objective of general interest, however
fundamental it may be, does not, in itself, justify a
retention measure such as that established by Directive
2006/24 being considered to be necessary for the
purpose of that fight. (Emphasis supplied)”385

The Court criticized the Directive for failing to lay down any clear or precise

rules governing the extent of the interference with the fundamental rights

enshrined in
Articles 7
and
of the Charter. It observed that the Directive was

overbroad because it applied to all data, regardless of the existence of

suspicion, and contained no criteria for limiting government access or

safeguards for preventing abuse:

“…Directive 2006/24 covers, in a generalised manner, all
persons and all means of electronic communication as well as
all traffic data without any differentiation, limitation or
exception being made in the light of the objective of fighting
against serious crime…
…Whilst seeking to contribute to the fight against serious
crime, Directive 2006/24 does not require any relationship
between the data whose retention is provided for and a threat
to public security and, in particular, it is not restricted to a
retention in relation (i) to data pertaining to a particular time
period and/or a particular geographical zone and/or to a circle
of particular persons likely to be involved, in one way or
another, in a serious crime, or (ii) to persons who could, for
other reasons, contribute, by the retention of their data, to the
prevention, detection or prosecution of serious offences.”386
“Not only is there a general absence of limits in Directive
2006/24 but Directive 2006/24 also fails to lay down any

385 Ibid, at para 51
386 Ibid, at paras 57-59
PART H

objective criterion by which to determine the limits of the
access of the competent national authorities to the data and
their subsequent use for the purposes of prevention,
detection or criminal prosecutions concerning offences that, in
view of the extent and seriousness of the interference with the
fundamental rights enshrined in
Articles 7
and
of the
Charter, may be considered to be sufficiently serious to justify
such an interference. On the contrary, Directive 2006/24
simply refers, in
Article 1(1)
, in a general manner to serious
crime, as defined by each Member State in its national
law.”387

The Court concluded that the Directive failed to set out “clear and precise

rules”388 for access or for how states should judge the period of time for which

data should be held, and “entails a wide-ranging and particularly serious

interference with those fundamental rights in the legal order of the EU, without

such an interference being precisely circumscribed by provisions to ensure

that it is actually limited to what is strictly necessary.”389 The Court struck

down the Directive on the basis of the scope of the data to be retained, 390 the

lack of limits imposed on state access,391 and the failure to distinguish

between the treatment of data based on its usefulness and relevance.392

Of crucial importance is the Court’s emphasis that the judicial review of the EU

legislature’s discretion “should be strict” because of “the important role played

by the protection of personal data in the light of the fundamental right to

respect for private life and the extent and seriousness of the interference with

387 Ibid, at para 60
388 Ibid, at para 54
389 Ibid, at para 65
390 Ibid, at paras 56 –58
391 Ibid, at paras 60-62
392 Ibid, at paras 59, 63– 64
PART H

that right caused by Directive 2006/24”.393 In addition, the Court emphasized

that even highly important objectives such as the fight against serious crime

and terrorism cannot justify measures which lead to forms of interference that

go beyond what is ‘strictly necessary’.394

213 In Michael Schwarz v Stadt Bochum,395 the Court of Justice of the

European Union was called upon to examine the validity of a provision in a

Council Regulation that obliged persons applying for a passport to provide

fingerprints which would be stored in that passport. In considering whether this

regulation was valid and necessary, the Court observed:

“…Article 1(2) of Regulation No 2252/2004 does not provide
for the storage of fingerprints except within the passport
itself, which belongs to the holder alone.396
The regulation not providing for any other form or
method of storing those fingerprints, it cannot in and of
itself…be interpreted as providing a legal basis for the
centralised storage of data collected thereunder or for
the use of such data for purposes other than that of
preventing illegal entry into the European Union.397
In those circumstances, the arguments put forward by the
referring court concerning the risks linked to possible
centralisation cannot, in any event, affect the validity of that
regulation and would have, should the case arise, to be
examined in the course of an action brought before the
competent courts against legislation providing for a
centralised fingerprint base. In the light of the foregoing, it
must be held that
Article 1(2)
of Regulation No 2252/2004
does not imply any processing of fingerprints that would go
beyond what is necessary in order to achieve the aim of
protecting against the fraudulent use of passports. It follows
that the interference arising from
Article 1(2)
of Regulation No
2252/2004 is justified by its aim of protecting against the
fraudulent use of passports.”398

393 Ibid, at para 48
394 Ibid, at para 51
395 [2013] EUECJ C-291/12
396 Ibid, at para 60
397 Ibid, at para 61
398 Ibid, at para 62
PART H

The Court held that although the taking and storing of fingerprints in passports

constituted an infringement of the right to respect for private life and the right

to protection of personal data,
Article 1(2)
of Regulation No 2252/2004 did not

imply any processing of fingerprints that would go beyond what is necessary

in order to achieve the aim of protecting against the fraudulent use of

passports and was therefore valid.

214 In Madhewoo v The State of Mauritius,399 the Judicial Committee of

the Privy Council heard an appeal from a judgment of the Supreme Court of

Mauritius regarding the constitutionality of the provisions of The National

Identity Card (Miscellaneous Provisions) Act, 2013.
The Act
required biometric

information including fingerprints, to be stored in a central register in which

particulars of the identity of every citizen of Mauritius were to be recorded.

The Supreme Court upheld provisions of the Act that provided for the

compulsory taking of fingerprints. However, the Court struck down those

provisions that provided for the biometric data to be stored in a central

register. The Appellant appealed to the Committee, contending that the

provisions providing for the compulsory taking of fingerprints should also be

struck down as unconstitutional.

The appellant challenged the following provisions of the Act: (i) the storage of

data in a register in electronic data under
Section 3
; (ii) the obligation to
399 [2016] UKPC 30
PART H

provide biometric information under
Section 4
; (iii) the collection of

information, in electronic form, for a national ID card under
Section 5
; (iv) the

compulsory production of an identity card to a policeman under
Section 7(1A)

in response to a request under
Section 7(1)(b)
; and (v) the gravity of the

potential penalties for non-compliance under
Section 9(3)
, before the

Mauritian Supreme Court. The challenge was on the ground that the

implementation of the biometric identity card and the permanent storage of

biometric data contravened provisions of the Mauritian Constitution and the

Civil Code.

Regarding the challenge to
Section 4 (2)(c)
of the Act, which provided that,

“every person who applies for an identity card shall allow his fingerprints, and

other biometric information about himself, to be taken and recorded … for the

purpose of the identity card,” the Supreme Court noted that the right to privacy

under
Section 9(1)
of the Constitution was not an absolute right and

interference with that right could be permitted under
Section 9(2)
, if a law that

interfered with that right was in the interest, inter alia, of public order. The

Committee noted the Supreme Court’s approach to determining whether

Section 4(2)(c)
fell foul of the Constitution, which was based on the test laid

down in S and Marper v The United Kingdom400:

“In addressing the question whether section 4(2)(c) of the
1985 Act (as amended) was reasonably justifiable in a
democratic society the Supreme Court drew on jurisprudence
of the European Court of Human Rights in S v The United
Kingdom…In substance the Court asked whether the

400 [2008] ECHR 1581
PART H

measure pursued a legitimate aim, whether the reasons given
by the national authorities for the interference in pursuit of
that aim were relevant and sufficient, and whether the
measure was proportionate to the aim pursued. This
evaluation is essentially the same as that adopted by the
courts in the United Kingdom in relation to
article 8(2)
of the
ECHR, in which the courts ask themselves (a) whether the
measure is in accordance with the law, (ii) whether it pursues
a legitimate aim, and (iii) whether the measure will give rise to
interferences with fundamental rights which are
disproportionate, having regard to the legitimate aim pursued.
In relation to (iii), the courts ask themselves: (a) whether the
objective is sufficiently important to justify a limitation of the
protected right, (b) whether the measure is rationally
connected to the objective, (c) whether a less intrusive
measure could have been used without compromising the
achievement of the objective (in other words, whether the
limitation on the fundamental right was one which it was
reasonable for the legislature to impose), and (d) whether the
impact of the infringement of the protected rights is
disproportionate to the likely benefit of the measure”

The Committee reproduced the Mauritian Supreme Court’s holding that the

provisions of the Act which enforced the compulsory taking and recording of

fingerprints interfered with the Appellant’s rights guaranteed under
section

9(1)
of the Constitution,401 but that the law was justifiable on grounds of public

interest and public order:

“We find that it can hardly be disputed that the taking of
fingerprints within the applicable legal framework pursues the
legitimate purpose of establishing a sound and secure identity
protection system for the nation and thus answers a pressing
social need affording indispensable protection against identity
fraud. Such a purpose, as has been amply demonstrated, is
vital for proper law enforcement in Mauritius. Furthermore,
taking into consideration the appropriate safeguards in the
taking of fingerprints for their insertion in the cards, and the
relatively limited degree of interference involved, we are led to
conclude that such interference is proportionate to the
legitimate aim pursued.”402

401 Maharajah Madhewoo v. The State of Mauritius & Anr., 2015 SCJ 177, at page 23
402 [2016] UKPC 30, at page 10
PART H

Thus, the Mauritian Supreme Court upheld provisions of the Act which

provided for the compulsory taking of fingerprints. The Appellant also

challenged
Section 3
of the Act, which provided for biometric data to be stored

in a register. The Supreme Court, after taking into consideration witness

testimonies on the purpose of data collection, noted that though there may

have been a legitimate aim for storing and collecting this data, “sufficiently

strong reasons…to establish that such storage and retention of data for an

indefinite period is proportionate to the legitimate aim pursued” were not

established.403 Thus, the Court held that:

“… it is inconceivable that there can be such uncontrolled
access to personal data in the absence of the vital safeguards
afforded by judicial control. The potential for misuse or abuse
of the exercise of the powers granted under the law would be
significantly disproportionate to the legitimate aim which the
defendants have claimed in order to justify the retention and
storage of personal data under the Data Protection Act.”404

Thus, while the Supreme Court noted that the law providing for the storage

and retention of personal biometric data constituted a permissible derogation

under
Section 9(2)
of the Constitution,405 it held that since the Respondent had

not established that provisions dealing with storage and retention were

reasonably justifiable in a democratic society, they were unconstitutional.

403 Ibid, at page 31
404 Ibid, at page 33
Article 9.
Protection of privacy of home and other property: (2) Nothing contained in or done under the authority
of any law shall be held to be consistent with or in contravention of this section to the extent that the law in
question makes provision - (a) in the interests of defence, public safety, public order, public morality, public
health, town and country planning, the development or utilisation of mineral resources or the development or
utilisation of any other property in such a manner as to promote the public benefit; (b) for the purpose of
protecting the rights or freedoms of other persons; (c) to enable an officer or agent of the government or a local
authority, or a body corporate established by law for public purpose, to enter on the premises of any person in
order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected
with any property that is lawfully on those premises and that belongs to the government, the local authority or
that body corporate, as the case may be; or (d) to authorise, for the purpose of enforcing the judgement or
order of a court in any civil proceedings, the search of any person or property by order of a court or the entry
upon any premises by such order, Except so far as that provision or, as the case may be, the thing done under
its authority is shown not to be reasonably justifiable in a democratic society
PART H

The Judicial Committee did not interfere with the Supreme Court’s decision.

However, it noted an inconsistency in the Supreme Court’s order wherein it

held that the law providing for the storage and retention of fingerprints and

other biometric data constitutes a permissible derogation under
section 9(2)
of

the Constitution, whilst simultaneously holding the same provisions to be

unconstitutional. The Committee reconciled the holding to be:

“A law providing for the storage and retention of fingerprints
and other personal biometric data regarding the identity of a
person in principle constitutes a permissible derogation, in
the interests of public order, under
section 9(2)
of the
Constitution.” (Emphasis supplied)

215 The learned Attorney General has relied on cases from other

jurisdictions to buttress his contention that the collection and use of biometric

information for various services have been found to be legal. ‘Biometric

data406’ is defined in the General Data Protection Regulation thus:

“personal data resulting from specific technical processing
relating to the physical, physiological or behavioural
characteristics of a natural person, which allow or confirm the
unique identification of that natural person, such as facial
images or dactyloscopic data.”

The learned Attorney General cited the following judgments of the US

Supreme Court: Vernonia School District 47J v Acton (“Acton”),407 Skinner

v Railway Labor Executives’ Association (“Skinner”),408 Whalen v Roe

(“Whalen”),409 United States v Dionisio (“Dionisio”)410 and Bowen v Roy
Article 4(14)
407 515
U.S. 646 (1995)
408 489 U.S. 602 (1989)
409 429 U.S. 589 (1977)
410 410 U.
S. 1 (1973)
PART H

(“Bowen”).411 Only Acton, Skinner and Dionisio were decided in the context

of biometrics, which as we have found before, forms the bedrock of the

Aadhaar program. In Acton, the court held that the action of the authorities

conducting random drug testing of high school athletes was legal since the

conditions of collection were nearly identical to those typically encountered in

public restrooms. As a result, it was found that, privacy interests of the

students were negligibly affected. In Skinner, the court found the actions of

the Federal Railroad Administration (“FRA”) requiring mandatory blood and

urine testing of employees involved in train accidents to be constitutional. The

court observed that railroad accidents, if not prevented, could cause massive

loss of life and property. Further, it was held that FRA’s regulations fulfilled a

“special need” because of the interest of the government in ensuring safety of

railroads and were therefore, not “an undue infringement on the justifiable

expectations of privacy of covered employees”. In Whalen, the Court found

that retention of patients’ information such as their name, address and age,

under the New York State Controlled Substances Act, 1972, was not in

violation of the constitutional right to privacy as the Court was satisfied that the

statute provided for proper safeguards and redressal against theft and loss of

information. In Dionisio, the Court found no constitutional infirmity with the

issuance of a subpoena to procure voice recording exhibits by tapping

telephones in order to investigate crimes. The Court held that “neither the

summons to appear before the grand jury, nor its directive to make a voice

recording, infringed upon any interest protected by the Fourth Amendment”.
411 476 U.S. 693 (1986)
PART H

The Court observed that a compelled display of identifiable physical

characteristics does not infringe upon an “interest protected by the privilege

against compulsory self-incrimination”. In Bowen, the Court upheld the

provisions of a welfare scheme which required citizens to furnish their social

security number, rejecting the argument that the use of a social security

number violated the Appellant’s Native American beliefs. The Court held that

the Free Exercise Clause of the First Amendment could not be construed to

place a requirement on the government to conduct its internal affairs in

consonance with the religious beliefs of particular citizens.

In In re Crawford,412 the Ninth Circuit upheld provisions of the Bankruptcy

Code which mandated public disclosure of a Bankruptcy Petition Preparers’

Social Security Number on documents submitted to the Court, noting that the

provision had been enacted to serve governmental interests of preventing

fraud and providing public access to judicial proceedings.

216 Some decisions of lower courts in the US which have considered the

validity of laws or actions of the State deploying biometrics and which have

been cited by the respondents are: Haskell v Harris (“Haskell”),413 Utility

Workers Union of America v Nuclear Regulatory Commission

(“UWUA”),414 Nicholas A Iacobucci v City of Newport (“Iacobucci”),415

412 194 F.3d 954 (9th Cir. 1999)
413 669 F.3d 1049 (9th Cir. 2012)
414 664 F. Supp. 136 (S.D.N.Y. 1987)
415 785 F.2d 1354 (6th Cir. 1986)
PART H

Thom v New York Stock Exchange (“Thom”),416 Perkey v Department of

Motor Vehicles (“Perkey”),417 Buchanan v Wing (Buchanan),418 People v

Stuller (“Stuller”),419 United States v Kelly (“Kelly”)420 and Brown v

Brannon (“Brannon”).421 At first blush, it does seem that these cases support

the Respondents’ stand, however, we cannot lose sight of the context in which

the courts came to the conclusion emphasised by the respondents in support

of their submissions. In Haskell, the Ninth Circuit found a Californian law

which authorized law enforcement officers to collect DNA in the form of a

sample from the buccal swab of the mouth of felony arrestees, who had not

been convicted, to be constitutional. The Court noted that the arrestees had

reduced privacy interests; the physical intrusion of collecting a buccal swab

was de minimis in nature; there were stringent limits on the manner in which

the information was to be used; and the interest of the State in deterring future

criminal acts to exculpate innocent arrestees aided in prison administration

and law enforcement. For the above reasons, the Court found that the

infringement of privacy of the felony arrestees was justified. In UWUA, the

Ninth Circuit ruled that a law requiring individuals working in nuclear power

facilities to submit their fingerprints for identification and criminal history record

checks was not unconstitutional. In Iacobucci, an ordinance which required

employees of liquor selling establishments which permitted nude dancing, to

be fingerprinted and photographed by the police department, was held

416 306 F. Supp. 1002 (S.D.N.Y. 1969)
417 (1986) 42 Cal. 3d 185
418 N.Y.S.2d 865
Cal. App.3d 582 (1970)
420 55 F.2d 67 (2d Cir. 1932)
421 399 F. Supp. 133 (M.D.N.C. 1975)
PART H

constitutional. The Court observed that fingerprinting and photographing of

employees of retail liquor establishments bore a rational relationship to the

legitimate aim of elimination of crime. In Thom, a New York statute, which as

a condition of employment, required all the employees of member firms of

national stock exchanges to be fingerprinted, was upheld. The Court ruled that

fingerprinting was a necessary means of verifying the existence or non-

existence of a prior criminal record, in order to avert any threat posed by an

employee who was in a position to commit theft of securities. In Perkey, the

Californian Supreme Court upheld the actions of the state mandating an

individual to provide a fingerprint in order to obtain a driver’s license. The

Court held that fingerprint technology was the only reliable means of ensuring

the integrity of the records of the department of motor vehicles as other

methods such as handwriting specimens and photographs were not reliable.

Thus, the submission of fingerprints as part of the license application process,

bore a rational relationship to the State’s goal of promoting safe and lawful

use of highways. In Buchanan, the Court upheld the eligibility requirement for

a welfare aid scheme which mandated participation in an identity verification

procedure known as Automated Finger Imaging System (AFIS), rejecting the

challenge based on religious beliefs of the Petitioner. The Court held that the

Petitioner had failed to prove that the AFIS involved any invasive procedures,

noting that she had acknowledged that she had never seen finger imaging

performed and had no idea whether a laser was involved. In Stuller, the

constitutionality of a law which required “temporary and itinerant classes of
PART H

employees” to undergo fingerprinting in order to protect “visitors and

residents” of a resort city from crime and loss, both against people and against

property, was upheld. In Kelly, the Circuit Court of Appeals rejected a claim

for return of fingerprints of the defendant which had been obtained after he

had been arrested by prohibition agents, holding that there was no reason to

interfere with a method of identifying persons “charged with a crime”. In

Brannon, the court held that a law requiring “massagists” to submit their

fingerprints, photographs and reports of their medical examinations in order to

obtain licenses was valid, noting that the fingerprints and photographs would

aid in their identification as well as in the enforcement of criminal statutes

relating to public morality and decency.

217 The cases cited by the learned Attorney General would not be

applicable in the context of the Aadhaar program. The cases cited dealt with

narrowly tailored legislations set out to achieve very specific objectives. For

instance, courts upheld statutes aimed at protecting a nuclear facility or to

prevent theft of securities, where incidents of sabotage or breach of security

would have led to national disasters. These national disasters in turn would

have resulted in the immediate loss of human life or in a situation of financial

emergency. Such laws, were therefore, enacted in order to assuage security

concerns which, if not implemented, could lead to incidents of massive losses

of life and property.
PART H

Some of the statutes upheld, permitted collection of DNA samples, fingerprints

and photographs for identification. The objective behind these laws was

prevention of crime, albeit on a comparatively smaller scale. Moreover, the

courts in these cases were also satisfied that the procedures involved in

collecting biometrics were not invasive enough to strike them down as

unconstitutional or that there were adequate safeguards to prevent misuse.

The aforementioned cases will not apply in the backdrop of the Aadhaar

program because they were rendered broadly in the context of prevention of

crime. It needs no reiteration that an entire population cannot be presumed to

be siphoning huge sums of money in welfare schemes or viewed through the

lens of criminality, and therefore, considered as having a diminished

expectation of privacy. The judgments cited by the respondents which were

decided in the context of crime, require the State to at least form a reasonable

belief about the criminal antecedents of individuals or their potential to commit

crimes. On the contrary, by collecting identity information, the Aadhaar

program treats every citizen as a potential criminal without even requiring the

State to draw a reasonable belief that a citizen might be perpetrating a crime

or an identity fraud. When the State is not required to have a reasonable belief

and judicial determination to this effect, a program like Aadhaar, which

infringes on the justifiable expectations of privacy of citizens flowing from the

Constitution, is completely disproportionate to the objective sought to be

achieved by the State.
PART H

218 The fundamental precepts of proportionality, as they emerge from

decided cases can be formulated thus:

1. A law interfering with fundamental rights must be in pursuance of a

legitimate state aim;

2. The justification for rights-infringing measures that interfere with or limit the

exercise of fundamental rights and liberties must be based on the

existence of a rational connection between those measures, the situation in

fact and the object sought to be achieved;

3. The measures must be necessary to achieve the object and must not

infringe rights to an extent greater than is necessary to fulfil the aim;

4. Restrictions must not only serve a legitimate purposes; they must also be

necessary to protect them; and

5. The State must provide sufficient safeguards relating to the storing and

protection of centrally stored data. In order to prevent arbitrary or abusive

interference with privacy, the State must guarantee that the collection and

use of personal information is based on the consent of the individual; that it

is authorised by law and that sufficient safeguards exist to ensure that the

data is only used for the purpose specified at the time of collection.

Ownership of the data must at all times vest in the individual whose data is

collected. The individual must have a right of access to the data collected

and the discretion to opt out.
PART H

219 Privacy and proportionality are two interlocking themes that recur

consistently in the above judgements. Privacy, also construed as

“informational self-determination”, is a fundamental value. There is a

consistent emphasis on the impact on personal dignity if private information is

widely available and individuals are not able to decide upon its disclosure and

use. This right of controlling the extent of the availability and use of one’s

personal data is seen as a building block of data protection - especially in an

environment where the state of technology facilitates ease of collection,

analysis and dissemination of information.

220 The blanket and indiscriminate collection of information is seen as a

violation of privacy, which is a constituent of the right to liberty. An extensive

power to retain collected data is also seen as a disproportionate interference

with the right to privacy and not necessary in a democratic society. The

judgments hold that unlimited data retention and unrestricted state access

both constitute a disproportionate interference with privacy and data

protection. They also emphasize the need to clearly stipulate the nature of the

data being collected and ensure its confidentiality. Provisions where these

principles are not respected cannot be regarded as valid. While courts do

recognize the need for public order and security, they emphasize the need to

strike a balance between safeguarding public order and the right to privacy.
PART H

221 The principle of proportionality also recurs through these judgments,

which note that the collection and use of information must be limited to the

purpose specified by law and to the extent indispensable for the protection of

public interest. The striking of a balance between public and private interests

is crucial to proportionality. The judgments hold that there must be a

protection against unauthorized use and clearly defined conditions for

processing of data collected. Those conditions must not be excessive and

must be justified on grounds of public interest and implemented in a manner

proportionate to the objective. Too broad a scope of data collected and

retained, the lack of limits imposed on access to data by authorities and a

failure to distinguish between the treatment of data based on its usefulness

and relevance are seen by Courts as constituting grounds for striking down

the measure. While the State's imperatives are seen as relevant, emphasis is

laid on retention and access requirements being proportionate to those

imperatives and the need to prevent against abuse. Courts have upheld

regulations that are necessary to achieve the legitimate aims and not

excessive in their nature or impact.

The issue is whether the Aadhaar project and the Act, Rules and Regulations

meet the test of proportionality.
PART H

H.4 Aadhaar: the proportionality analysis

222 Under Aadhaar, the State has put forth an objective of transferring

subsidies and entitlements to its citizens. The aim was to curb leakages and

to increase transparent and efficient “targeted delivery of subsidies, benefits

and services”. However, the Act in the present form has surpassed a tailored

objective and has sought to administer every facet of the citizen-state

engagement through mandatory biometric-enabled Aadhaar linking. The

violations of fundamental rights that result from the operation of the Aadhaar

scheme will have to be evaluated on the touchstone of legitimate state

interest and proportionality.

Since biometric systems have been employed, it is fundamental to understand

that the right to privacy and its protection must be at the centre of the debate,

from the very onset of the decision to use biometric data. It is vital that

adequate safeguards are set down for every step of the process from

collection to retention of biometric data. At the time of collection, individuals

must be informed about the collection procedure, the intended purpose of the

collection, the reason why the particular data set is requested and who will

have access to their data. Additionally, the retention period must be justified

and individuals must be given the right to access, correct and delete their data

at any point in time, a procedure familiar to an opt-out option. The intended

purpose should always act as a shining light and adequate caution must be
PART H

taken to ensure that there is no function creep with the lapse of time, in order

to prevent the use of the data for new, originally unintended purposes.

Measures to protect privacy would include enacting more entrenched and

specific legislation so that the right to privacy is not only recognized but

protected in all its aspects. Meeting this obligation would necessarily mean

enactment of data protection legislation as well. The choice of particular

techniques and the role of components in the architecture of the technology

also have a strong impact on the privacy protections provided by the biometric

system.

During the course of the hearing, the CEO of UIDAI, Mr Ajay Bhushan Pandey

was permitted on the request of the learned Attorney General to make a

power-point presentation before the Court, explaining the architecture and

working of the Aadhaar project. On the basis of the presentation, Mr Shyam

Divan, counsel for the petitioners had served a list of questions to the

respondents. Responses to these questions have been filed by UIDAI.

Analysing the power-point presentation by the CEO, questions addressed by

Mr Divan and the responses filed by the respondents will facilitate an

understanding of the architecture of the Aadhaar project.

Our analysis indicates that the correctness of the documents submitted by an

individual at the stage of enrolment or while updating information is not

verified by any official of UIDAI or of the Government. UIDAI does not take
PART H

institutional responsibility for the correctness of the information entering its

database. It delegates this task to the enrolment agency or the Registrar. The

following response has been submitted by the respondents to the queries

addressed specifically on this aspect:

“As per UIDAI process, the verification of the documents is
entrusted to the Registrar. For Verification based on
Documents, the verifier present at the Enrolment Centre will
verify the documents. Registrars/Enrolment agency must
appoint personnel for the verification of documents.”

223 UIDAI does not identify the persons who enrol within the Aadhaar

system. Once the biometric information is stored in the CIDR during

enrolment, it is only matched with the information received at the time of

authentication. Biometric authentication of an Aadhaar number holder is

performed as a “one to one” biometric match against the biometric information

of the Aadhaar number holder in CIDR. Based on the match, UIDAI provides

a ‘yes’ or ‘no’response. Whether the information which is entering into CIDR is

correct or not is a task entrusted to the enrolling agency or the Registrars.

UIDAI does not assume responsibility for it.

The task of verifying whether a person is an illegal resident has also been left

to the enrolling agencies. At the stage of enrolment, a verification of whether a

person has been residing in India for 182 days or more in the past twelve

months is done on the basis of a ‘self-declaration’ of the individual. The

declaration which has been provided in the Aadhaar enrolment forms is thus:
PART H

“Disclosure under section 3(2) of The Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Servìces Act, 2016
I confirm that I have been residing in India for at least 182
days in the preceding 12 months & information (including
biometrics) provided by me to the UIDAI Ìs my own and is
true, correct and accurate. I am aware that my information
including biometrics will be tested for generation of Aadhaar
and authentication. I understand that my identity information
(except core biometric) may be provided to an agency only
with my consent during authentication or as per the provisions
of the Aadhaar Act. I have a right to access my identity
information (except core biometrics) following the procedure
laid down by UIDAI.”422

224 The petitioners have argued that persons who were enrolled under the

Aadhaar programme before the Act came into force on 12 September 2016

(more than a hundred crore) were not even required to make this declaration.

The authenticity of the documents submitted (along with the declaration) is not

checked by UIDAI.

The exception handling process permitting the use of alternative modes of

identification if the Aadhaar authentication fails, is also left to the discretion of

the Requesting Entity. On this aspect, the response which has been provided

to the Court is thus:

“As per
Regulation 14(i)
of Aadhaar (Authentication)
Regulations 2016, requesting entities shall implement
exception-handling mechanisms and back-up identity
authentication mechanisms to ensure seamless provision of
authentication services to Aadhaar number holders.
Therefore, this exception handling mechanism is to be
implemented and monitored by the requesting entities and in
case of the government, their respective ministries.”
PART H

Forty-nine thousand enrolment operators have been blacklisted by UIDAI. In

reply to the question of the petitioners asking the reasons for blacklisting of

the enrolment operators, UIDAI has stated that a data quality check is done

during the enrolment process and if any Aadhaar enrolment is found to be not

to be compliant with the UIDAI process, the enrolment gets rejected and an

Aadhaar number is not generated. An operator who crosses a threshold

defined in the policy, is blacklisted/ removed from the UIDAI ecosystem.

UIDAI has provided information that forty-nine thousand operators were

blacklisted/removed from the UIDAI ecosystem for the following reasons: (a)

illegally charging residents for Aadhaar enrolment; (b) poor demographic data

quality; (c) invalid biometric exceptions; and (d) other process malpractices.

Once an operator is blacklisted or suspended, further enrolments cannot be

carried out by it until the order of blacklisting/suspension is valid.

225 The Aadhaar architecture incorporates the role of Authentication User

Agencies (AUAs) and Authentication Service Agencies (ASAs). ASAs, under

the Aadhaar (Authentication) Regulations, have been defined as entities

providing necessary infrastructure for ensuring secure network connectivity

and related services for enabling a requesting entity to perform authentication

using the authentication facility provided by UIDAI.423 AUAs have been

defined under the Aadhaar (Authentication) Regulations as requesting entities

that use the Yes/No authentication facility provided by UIDAI. 424 “Yes/No
Regulation 2(f)
, Aadhaar (Authentication) Regulations
Regulation 2(g)
, Aadhaar (Authentication) Regulations
PART H

authentication facility” is a type of authentication facility in which the identity

information and Aadhaar number securely submitted with the consent of the

Aadhaar number holder through a requesting entity, are matched against the

data available in the CIDR, and the Authority responds with a digitally signed

response containing a “Yes” or “No”, along with other technical details related

to the authentication transaction, excluding identity information.425 The other

type of authentication facility is the e-KYC authentication facility, in which the

biometric information and/or OTP and Aadhaar number securely submitted

with the consent of the Aadhaar number holder through a requesting entity,

are matched against the data available in the CIDR, and the Authority returns

a digitally signed response containing e-KYC data along with other technical

details related to the authentication transaction. A requesting entity which, in

addition to being an AUA, uses e-KYC authentication facility provided by

UIDAI is called a “e-KYC User Agency” or “KUA”.426 Under
Regulation 15(2)
, a

requesting agency may permit any other agency or entity to perform Yes/ No

authentication by generating and sharing a separate license key for every

such entity through the portal provided by UIDAI to the said requesting entity.

It has also been clarified that sharing of a license key is only permissible for

performing Yes/ No authentication, and is prohibited in case of e-KYC

authentication.427
Regulation 2(p)
, Aadhaar (Authentication) Regulations
Regulation 2(l)
, Aadhaar (Authentication) Regulations
Regulation 15
, Aadhaar (Authentication) Regulations
PART H

The petitioners have contended that the points of service (PoS) biometric

readers are capable of storing biometric information. The response which

UIDAI has provided is extracted below:

“UIDAI has mandated use of Registered Devices (RD) for all
authentication requests. With Registered Devices biometric
data is signed within the device/ RD service using the
provider key to ensure it is indeed captured live. The device
provider RD Service encrypts the PID block before returning
to the host application. This RD Service encapsulates the
biometric capture, signing and encryption of biometrics all
within it. Therefore, introduction of RD in Aadhaar
authentication system rules out any possibility of use of
stored biometric and replay of biometrics captured from other
source. Requesting entities are not legally allowed to store
biometrics captured for Aadhaar authentication under

Regulation 17(1)(a)
of Aadhaar (Authentication) Regulations
2016.”

226 A PID block is defined in
Regulation 2(n)
of Aadhaar (Authentication)

Regulations, 2016 as the Personal Identity Data element, which includes

necessary demographic and/or biometric and/or OTP collected from the

Aadhaar number holder during authentication.
Regulation 17(1)(c)
allows the

requesting entity to store the PID block when “it is for buffered authentication

where it may be held temporarily on the authentication device for a short

period of time, and that the same is deleted after transmission”. Thus, under

the Aadhaar project, requesting entities can hold the identity information of

individuals, even if for a temporary period.

It was further contended by the petitioners that authentication entities in the

Aadhaar architecture are capable of recording the date and time of the

authentication, the client IP, the device ID and purpose of authentication. In
PART H

response, UIDAI stated that it does not ask requesting entities to maintain any

logs related to the IP address of the device, GPS coordinates of the device

and purpose of authentication. It was, however, admitted that in order to

ensure that their systems are secure and frauds are managed, AUAs like

banks and telecom providers may store additional information according to

their requirement to secure their system.

227 The process of sending authentication requests has been dealt with in

Regulation 9
of the Aadhaar (Authentication) Regulations. It provides that

after collecting the Aadhaar number or any other identifier provided by the

requesting entity which is mapped to the Aadhaar number and necessary

demographic and / or biometric information and/ or OTP from the Aadhaar

number holder, the client application immediately packages and encrypts the

input parameters into the PID block before transmission and sends it to the

server of the requesting entity using secure protocols. After validation, the

server of a requesting entity passes the authentication request to the CIDR,

through the server of the Authentication Service Agency. The Regulation

further provides that the authentication request must be digitally signed by the

requesting entity and/or by the Authentication Service Agency, pursuant to the

mutual agreement between them. Based on the mode of authentication

requested, the CIDR validates the input parameters against the data stored

and returns a digitally signed Yes or No authentication response, or a digitally

signed e-KYC authentication response with encrypted e-KYC data, as the
PART H

case may be, along with other technical details related to the authentication

transaction. In all modes of authentication, the Aadhaar number is mandatory

and is submitted along with the input parameters such that authentication is

always reduced to a 1:1 match. Clause (5) of
Regulation 9
provides that a

requesting entity shall ensure that encryption of PID Block takes place at the

time of capture on the authentication device according to the processes and

specifications
laid down by
UIDAI.
Regulation 18(1)
provides that a requesting

entity would maintain logs of the authentication transactions processed by it,

containing the following transaction details:

(a) the Aadhaar number against which authentication is sought;

(b) specified parameters of authentication request submitted;

(c) specified parameters received as authentication response;

(d) the record of disclosure of information to the Aadhaar number holder at the

time of authentication; and

(e) record of consent of the Aadhaar number holder for authentication.

The provision excludes retention of PID information in any case. Regulations

18(2) and 18(3) allow the retention of the logs of authentication transactions

by the requesting entity for a period of two years. Upon the expiry of two years

the logs have to be archived for a period of five years or the number of years

required by the laws or regulations governing the entity, whichever is later.

Upon the expiry of this period, the logs shall be deleted except those records

which are required to be retained by a court or for any pending disputes.

Regulation 20(1)
provides that an Authentication Service Agency would
PART H

maintain logs of the authentication transactions processed by it, containing

the following transaction details:

(a) identity of the requesting entity;

(b) parameters of authentication request submitted; and

(c) parameters received as authentication response.

The Regulation excludes retention of Aadhaar number, PID information,

device identity related data and e-KYC response data. Under Regulations

20(2) and 20(3), authentication logs shall be maintained by the ASA for a

period of two years, during which period the Authority and/or the requesting

entity may require access to such records for grievance redressal, dispute

redressal and audit in accordance with the procedure specified in the

regulations. The authentication logs shall not be used for any purpose other

than that stated. Upon the expiry of the period of two years, the authentication

logs shall be archived for a period of five years. Upon the expiry of five years

or the number of years required by the laws or regulations governing the

entity whichever is later, the authentication logs shall be deleted except those

logs which are required to be retained by a court or for pending disputes.

Section 2(d)428 of the Aadhaar Act allows storage of the record of the time of

authentication. These provisions permit the storage of logs of authentication

transactions for a specific time period.

The power-point presentation made by the CEO of UIDAI states that:

428Section 2(d) states: “authentication record” means the record of the time of authentication and identity of the
requesting entity and the response provided by the Authority
PART H

“With registered devices every biometric device will have a
unique identifier allowing traceability, analytics and fraud
management and biometric data will be signed within the
device.”

The response further indicates that UIDAI gets the AUA code, ASA code,

unique device code, registered device code used for authentication, and that

UIDAI would know from which device the authentication has happened and

through which AUA/ASA. The response provided by the respondents states:

“UIDAI does not get any information related to the IP address
or the GPS location from where authentication is performed
as these parameters are not the part of authentication (v2.0)
and e-KYC (v2.1) API. UIDAI would only know from which
device the authentication has happened, through which
AUA/ASA etc. This is what the slides meant by traceability.
UIDAI does not receive any information about at what location
the authentication device is deployed, its IP address and its
operator and the purpose of authentication. Further, the
UIDAI or any entity under its control is statutorily barred from
collecting, keeping or maintaining any information about the
purpose of authentication under Section 32(3) of the Aadhaar
Act.”

However,
Regulation 26
, which deals with the storage and maintenance of

Authentication Transaction Data clearly provides that UIDAI shall store and

maintain authentication transaction data, which shall contain the following

information:

(a) authentication request data received including PID block;

(b) authentication response data sent;

(c) meta data429 related to the transaction; and

(d) any authentication server side configurations430 as necessary.

429AUA code, ASA code, unique device code, registered device code used for authentication, and that UIDAI
would know from which device the authentication has happened
430An important configuration could be IP address
PART H

The only data, which has been excluded from retention under this provision,

like Section 32(3) of the Aadhaar Act, is the purpose of authentication.

Regulation 27
provides that the authentication transaction data shall be

retained by UIDAI for a period of six months, and will thereafter be archived

for five years, upon which, the authentication transaction data shall be deleted

except when it is required to be maintained by a court or in connection with

any pending dispute. These provisions indicate that under the Aadhaar

architecture, UIDAI stores authentication transaction data. This is in violation

of the widely recognized data minimisation principles which seek that data

collectors and processors delete personal data records when the purpose for

which it has been collected is fulfilled. The lack of specification of security

standards and the overall lack of transparency and inadequate grievance

redressal mechanism under the Aadhaar program greatly exacerbate the

overall risk associated with data retention. In the Aadhaar regime, an

Authentication User Agency (AUA) connects to the CIDR and uses Aadhaar

authentication to validate a user and enable its services. The responsibility for

the logistics of service delivery rests with the AUAs. In this federated model,

Authentication Service Agencies (ASAs) transmit authentication requests to

CIDR on behalf of one or more AUAs. However, any device that

communicates via the Internet is assigned an IP address. Using the meta-

data related to the transaction, the location of the authentication can easily be

traced using the IP address.
PART H

228 The petitioners have also brought the attention of this Court to bear on

an expert report, with respect to security and Aadhaar, which was filed along

with an Additional Affidavit dated 09 March 2018. The report dated 4 March

2018 is titled as “Analysis of Major Concern about Aadhaar Privacy and

Security” and has been authored by Professor Manindra Agrawal. Professor

Agrawal is the N Ramarao Professor at IIT Kanpur and is a member of the

Technology and Architecture Review Board (TARB) and of the Security

Review Committee of UIDAI. Professor Agarwal’s Report deals with the notion

of differential privacy. Differential privacy makes it possible for tech entities to

collect and share aggregate information about user habits, while maintaining

the privacy of individual users. The Report states that differential privacy of a

protocol is the change in the privacy of people when the protocol is introduced

without altering any other protocol present. If the differential privacy of a

protocol is “non-negative”, the protocol does not compromise privacy in any

way. There are four existing Aadhaar databases:

(i) The ‘person database’ stores personal attributes of a person (name,

address, age, etc.) along with his/her Aadhaar number;

(ii) The reference database stores the Aadhaar number of a person along

with a unique reference number (which has no relationship with the

Aadhaar number of an individual);

(iii) The biometric database stores biometric information of a person along

with the unique reference number; and
PART H

(iv) The verification log records all ID verifications done in the past five years.

For each verification, it stores the biometric data, Aadhaar number, and

ID of the device on which verification was done.

The report analyses the situation if any of the databases gets leaked. The

report remarks:

“Finally, let us turn attention to Verification Log. Its leakage
may affect both the security and the privacy of an individual
as one can extract identities of several people (and hence
can keep changing forged identities) and also locate the
places of transactions done by an individual in the past five
years. Note that differential privacy of this becomes negative
since without access to this database it is not possible to
track locations of an individual in past five years (as opposed
to tracking current location which is possible). Therefore,
Verification Log must be kept secure.”

The Report underlines the importance of ensuring the security of verification

logs in the Aadhaar database. The leakage of verification logs is capable of

damaging the security and privacy of individuals since the report notes that

from the verification log, it is possible to locate the places of transactions by

an individual in the past five years. A breach in verification log would allow a

third party to access the location of the transactions of an individual over the

past five years. The report indicates that it is possible through the Aadhaar

database to track the location of an individual. The Aadhaar database is

different from other databases such as PAN Card or driving license. The

Aadhaar database is universal and contains the biometrics of an individual.

The threshold to scrutinize the effects of this database is therefore much

higher as compared to that of other databases.
PART H

229 In Puttaswamy, Justice Kaul (in his concurring judgment) emphasized

upon the concerns regarding surveillance of individuals. The learned Judge

held:

“The growth and development of technology has created new
instruments for the possible invasion of privacy by the State,
including through surveillance, profiling and data collection
and processing. Surveillance is not new, but technology has
permitted surveillance in ways that are unimaginable… One
such technique being adopted by States is ‘profiling’. The
European Union Regulation of 2016 on data privacy defines
‘Profiling’ as any form of automated processing of personal
data consisting of the use of personal data to evaluate certain
personal aspects relating to a natural person, in particular to
analyse or predict aspects concerning that natural person's
performance at work, economic situation, health, personal
preferences, interests, reliability, behaviour, location or
movements. Such profiling can result in discrimination based
on religion, ethnicity and caste.”431

Justice Kaul also dealt with the need to regulate the conduct of private entities

vis-a-vis profiling of individuals:

“The capacity of non-State actors to invade the home and
privacy has also been enhanced. Technological development
has facilitated journalism that is more intrusive than ever
before…432
…[I]n this digital age, individuals are constantly generating
valuable data which can be used by non-State actors to track
their moves, choices and preferences. Data is generated not
just by active sharing of information, but also passively…
These digital footprints and extensive data can be analyzed
computationally to reveal patterns, trends, and associations,
especially relating to human behavior and interactions and
hence, is valuable information. This is the age of ‘big data’.
The advancement in technology has created not just new
forms of data, but also new methods of analysing the data
and has led to the discovery of new uses for data. The
algorithms are more effective and the computational power
has magnified exponentially.”433

431 Puttaswamy at para 585
432 Puttaswamy at para 587
433 Puttaswamy at para 588
PART H

230 Section 2(c) of the Aadhaar Act is capable of revealing the identity of an

individual to UIDAI.
Section 2(d)
permits storage of record of the time of

authentication. Through meta data and in the light of the observations made in

the Professor Manindra Agarwal Report, it can easily be concluded that it is

possible through the UIDAI database to track the location of an individual.

Further, the verification logs reveal the details of transactions over the past

five years. The verification logs are capable of profiling an individual. Details

of the transaction include what the transaction was (whether authentication

request was accepted/rejected), where it was sent from, and how it was sent.

The only thing not stored in the transaction is its purpose.

231 The threat to privacy arises not from the positive identification that

biometrics provide, but the ability of third parties to access this in an

identifiable form and link it to other information, resulting in secondary use of

that information without the consent of the data subject. This erodes the

personal control of an individual over the uses of his or her information. The

unauthorised secondary use of biometric data is perhaps the greatest risk that

biometric technology poses to informational privacy.434 The Manindra Agarwal

Report acknowledges that the biometric database in the CIDR is accessible

by third-party vendors providing biometric search and de-duplication

algorithms. The other three databases are stored, in encrypted form, by

UIDAI.

434Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013) at page
PART H

In this regard, it would be necessary to deal with the Contract (dated 24

August 2010) signed between UIDAI and L1 Identity Solutions (the foreign

entity which provided the source code for biometric storage). It has been

submitted by the petitioners that the contract gives L1 Identity Solutions free

access to all personal information about all residents in India. The contract

specifies that UIDAI (‘the purchaser’) has the right in perpetuity to use all

original newly created processes “identified” by M/S L-1 Identity Solutions

“solely during execution” of the contract to the purchaser’s unique

specifications and which do not contain any pre-existing intellectual property

right belonging to L-1 Identity Solutions.435 UIDAI was provided the license of

the software (proprietary algorithms) developed by L-1 Identity Solutions.

However, it has been clarified in the Contract that:

“The Contract and the licenses granted herein are not a sale
of a copy of the software and do not render Purchaser the
owner of M/S L-1 Identity Solutions Operating Company’s
proprietary ABIS and SDK software.”436

The Contract authorises L-1 Identity Solutions to retain proprietary ownership

of all intellectual property rights in and to goods, services and other

deliverables to the purchaser under the Contract that are modifications or

derivative works to their pre-existing technologies, software, goods, services

and other works. If a modification or derivative work made by L-1 Identity

Solutions or its consortium members contains unique confidential information

of the purchaser, then, the contract provides that the former shall not further

435 Clause 13.1 of the Contract
436 Ibid
PART H

license or distribute such modification or derivative to any other customer or

third party other than the purchaser without the purchaser’s prior written

permission.437 Clause 13.3 provides:

“M/S L-1 Identity Solutions Operating Company/ The team of
M/S L-1 Identity Solutions Operating Company shall ensure
that while it uses any software, hardware, processes,
document or material in the course of performing the
Services, it does not infringe the Intellectual Property Rights
of any person and M/S L-1 Identity Solutions Operating
Company shall keep the Purchaser indemnified against all
costs, expenses and liabilities howsoever, arising out any
illegal or unauthorized use (piracy) or in connections with any
claim or proceedings relating to any breach or violation of any
permission/license terms or infringement of any Intellectual
Property Rights by M/S L-1 Identity Solutions Operating
Company or the team of M/S L-1 Identity Solutions Operating
Company during the course of performance of the Services.
In case of infringement by M/S L-1 Identity Solutions
Operating Company/ The team of M/S L-1 Identity Solutions
Operating Company, M/S L-1 Identity Solutions Operating
Company shall have sole control of the defense and all
related settlement negotiations.”

Clause 13.4 deals with information privacy. It provides:

“M/S L-1 Identity Solutions Operating Company/ The team of
M/S L-1 Identity Solutions Operating Company shall not carry
any written/printed document, layout diagrams, floppy
diskettes, hard disk, storage tapes, other storage devices or
any other goods/material proprietary to Purchaser into/out of
Datacenter Sites and UIDAI Locations without written
permission from the Purchaser.”

Clause 15, titled as “data and hardware”, provides:

“15.1 By virtue of this Contract, M/s L-1 Identity Solutions
Operating Company/The team of M/s L-1 Identity Solutions
Operating Company may have access to personal information
of the Purchaser [UIDAI] and/or a third party or any resident
of India, any other person covered within the ambit of any
legislation as may be applicable. The purchaser shall have
the sole ownership of and the right to use all such data in

437 Ibid
PART H

perpetuity including any data or other information pertaining
to the residents of India that may be in the possession of M/s
L-1 Identity Solutions Operating Company or the Tram of M/s
L-1 Identity Solutions Operating Company in the course of
performing.

15.2 The purchaser shall have the sole ownership of and the
right to use, proprietary Biometric templates of residents of
India as created and maintained by M/S L-1 Identity Solutions
Operating Company in the course of performing the Services
under this Contract. In the event of termination or expiry of
contract, M/S L-1 Identity Solutions Operating Company shall
transfer all the proprietary templates to UIDAI in an electronic
storage media in a form that is freely retrievable for reference
and usage in future.

15.3 The Data shall be retained by M/S L-1 Identity Solutions
Operating Company not more than a period of 7 years as per
Retention Policy of Government of India or any other policy
that UIDAI may adopt in future.”

Under the Contract, L-1 Identity Solutions retains the ownership of the

biometric software. UIDAI has been given only the license to use the software.

Neither the Central Government nor the UIDAI have the source code for the

de-duplication technology which is at the heart of the programme. The source

code belongs to a foreign corporation. UIDAI is merely a licensee. It has also

been provided that L-1 Identity Solutions can be given access to the database

of UIDAI and the personal information of any individual.

232 This Court in Puttaswamy had emphasized on the centrality of consent

in protection of data privacy:

“307…Apart from safeguarding privacy, data protection
regimes seek to protect the autonomy of the individual. This is
evident from the emphasis in the European data protection
regime on the centrality of consent. Related to the issue of
consent is the requirement of transparency which requires a
disclosure by the data recipient of information pertaining to
data transfer and use.”
PART H

Prior to the enactment of the Aadhaar Act, an individual had no right of

informed consent. Without the consent of individual citizens, UIDAI contracted

with L-1 Identity Solutions to provide any information to it for the performance

of the Contract. It has been provided in the Contract that L-1 Identity Solutions

would indemnify UIDAI against any loss caused to it. However, the leakage of

sensitive personal information of 1.2 billion citizens, cannot be remedied by a

mere contractual indemnity. The loss of data is irretrievable. In a digital

society, an individual has the right to protect herself by maintaining control

over personal information. The protection of data of 1.2 billion citizens is a

question of national security and cannot be indemnified by a Contract.

233 Mr Shyam Divan, learned senior counsel for the petitioners, has also

drawn the attention of this Court to the Memorandum of Understanding (MoU)

signed between UIDAI and various entities for carrying out the process of

enrolment. Before the enactment of the Aadhaar Act, UIDAI existed as an

executive authority, under the erstwhile Planning Commission and then under

the Union Ministry of Communications and Information Technology. Mr. Divan

has argued that the activities of the private parties engaged in the process of

enrolment had no statutory or legal backing. It was his contention that MOUs

signed between UIDAI and Registrars are not contracts within the purview of

Article 299
of the Constitution, and therefore, do not cover the acts done by
PART H

the private entities engaged by the Registrars for enrolment.
In
Monnet Ispat

and Energy Ltd v Union of India438
, this Court had held:

“290. What the appellants are seeking is in a way some kind
of a specific performance when there is no concluded
contract between the parties. An MOU is not a contract, and
not in any case within the meaning of
Article 299
of the
Constitution of India.”439

The MoUs entered into by UIDAI do not fall within the meaning of
Article 299

of the Constitution. There is no privity of contract between UIDAI and the

Enrolling agencies.

234 This Court held in Puttaswamy that any law which infringes the right to

privacy of an individual needs to have stringent inbuilt safeguards against the

abuse of the process. The Aadhaar Act envisages UIDAI as the sole authority

for the purpose of the Act. It entrusts UIDAI with a wide canvass of functions,

both administrative and adjudicatory. It performs the functions of appointing

enrolling agencies, registrars and requesting entities. Currently, there are 212

Registrars and 755 enrolling agencies in different states of the country. 440

Monitoring the actions of so many entities is not a task easily done.

Responsibility has also been placed on UIDAI to manage and secure the

central database of identity information of individuals. UIDAI is also required

to ensure that data stored in CIDR is kept secure and confidential. It has been

placed with the responsibility for the protection of the identity information of

1.2 billion citizens. UIDAI is entrusted with discretionary powers under the
438 (2012) 11 SCC 1
439 Ibid, at page 153
440 As submitted by Mr Rakesh Dwivedi, learned senior counsel for the State of Gujarat
PART H

architecture of Aadhaar, including the discretion to share the personal

information of any individual with the biometric service providers (BSPs) for

the performance of contracts with them.

235 The proviso to
Section 28(5)
provides only for a request to UIDAI for

access to information and does not make access to information a right of the

individual. This would mean that it would be entirely upon the discretion of the

UIDAI to refuse to grant access to the information once a request has been

made. It is also not clear how a person is supposed to know that the biometric

information contained in the database has changed if he/she does not have

access to it. UIDAI is also empowered to investigate any breach under the

Act, as a result of which any offence under the Act will be cognizable only if a

complaint is filed by UIDAI. UIDAI is not an independent monitoring agency.

Under the Aadhaar architecture, UIDAI is the only authority which carries out

all the functions, be it administrative, adjudicatory, investigative, or monitoring

of the project.
While the Act
confers such major functions on UIDAI, it does

not place any institutional accountability upon UIDAI to protect the database

of citizens’ personal information.
The Act
is silent on the liability of UIDAI and

its personnel in case of non-compliance of the provisions of the Act or the

regulations made under it. Under
Section 23(2)(s)
of the Act, UIDAI is

required to establish a grievance redressal mechanism. Making the authority

administering a project, also responsible for providing for the framework to
PART H

address grievances arising from the project, severely compromises the

independence of the grievance redressal body.441
Section 47
of the Act

violates the right to seek remedy. Under
Section 47(1)
, a court can take

cognizance of an offence punishable under the Act only on a complaint made

by UIDAI or any officer or person authorised by it. There is no grievance

redressal mechanism if any breach or offence is committed by UIDAI itself.

The law must specify who is to be held accountable.
The Act
lacks a

mechanism through which any individual can seek speedy redressal for

his/her data leakage and identity theft. Compensation must be provided for

any loss of data of an individual. A stringent and independent redressal

mechanism and options for compensation must be incorporated in the law.

Section 47
is arbitrary as it fails to provide a mechanism to individuals to seek

efficacious remedies for violation of their right to privacy. Whether it is against

UIDAI or a private entity, it is critical that the individual retains the right to seek

compensation and justice. This would require a carefully designed

structure.442

236 An independent and autonomous authority is needed to monitor the

compliance of the provisions of any statute, which infringes the privacy of an

individual. A fair data protection regime requires establishment of an

independent authority to deal with the contraventions of the data protection

framework as well as to proactively supervise its compliance. The
441 The Centre for Internet & Society, Salient Points in the Aadhaar Bill and Concerns, available at https://cis-
india.org/internet-governance/salient-points-in-the-aadhaar-bill-and-concerns.
442Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at pages 226-
PART H

independent monitoring authority must be required to prescribe the standards

against which compliance with the data protection norms is to be measured. It

has to independently adjudicate upon disputes in relation to the contravention

of the law. Data protection requires a strong regulatory framework to protect

the basic rights of individuals. The architecture of Aadhaar ought to have, but

has failed to embody within the law the establishment of an independent

monitoring authority (with a hierarchy of regulators), along with the broad

principles for data protection.443 The principles should include that the means

of collection of data are fair and lawful, the purpose and relevance is clearly

defined, user limitations accompanied by intelligible consent requirements are

specified and subject to safeguards against risks such as loss, unauthorised

access, modification and disclosure.444 The independent authority needs to be

answerable to Parliament. In the absence of a regulatory framework which

provides robust safeguards for data protection, the Aadhaar Act does not

pass muster against a challenge on the ground of
Article 14.
The law fails to

meet the norms expected of a data protection regime which safeguards the

data of 1.2 billion Indians. The absence of a regulatory framework leaves the

law vulnerable to challenge on the ground that it has failed to meet the

requirements of fair institutional governance under the rule of law.

237 The scheme of the Aadhaar Act is postulated on the norms enunciated

in Chapter VI for the protection of information and their enforcement under a
443Subhashis Banerjee, Architecture for privacy, The Indian Express (5 May 2018), available at
https://indianexpress.com/article/opinion/columns/architecture-for-privacy-data-protection-facebook-india-
united-states-5163819/
444 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226
PART H

regime of criminal offences and penalties under Chapter VII. Providing a

regime under law for penalizing criminal wrongdoing is necessary. But,

criminal offences are not a panacea for a robust regulatory framework under

the auspices of an autonomous regulatory body. Violations in regard to the

integrity of data may be incremental. Millions of data transactions take place in

the daily lives of a community of individuals. Violations in regard to the

integrity of data are numerous. Some of them may appear to be trivial, if

looked at in isolation. However, cumulatively, these violations seriously

encroach on the dignity and autonomy of the individual. A regime of criminal

law may not in itself be adequate to deal with all these violations in terms of

their volume and complexity. It is hence necessary that the criminal law must

be supplemented by an independent regulatory framework. In its absence,

there is a grave danger that the regime of data protection, as well as the

administration of criminal justice will be rendered dysfunctional. Unfortunately,

a regulatory framework of the nature
referred to above
is completely absent.

UIDAI which is established and controlled by the Union Government

possesses neither the autonomy nor the regulatory authority to enforce the

mandate of the law in regard to the protection of data. The absence of a

regulatory framework renders the legislation largely ineffective in dealing with

data violations. Data protection cannot be left to an unregulated market place.

Nor can the law rest in the fond hope that organized structures within or

outside government will be self-compliant. The Aadhaar Act has manifestly

failed in its legislative design to establish and enforce an autonomous
PART H

regulatory mechanism. Absent such a mechanism, the state has failed to fulfil

the obligation cast upon it to protect the individual right to informational self-

determination.
Section 33(2)
, which permits disclosure of identity information and

authentication records in the interest of national security, specifies a

procedure for oversight by a committee. However, no substantive provisions

have been laid down as guiding principles for the oversight mechanism such

as the principle of data minimisation.

239 Privacy concerns relating to the Aadhaar project have been the subject

of wide ranging deliberation. Biometric data offers strong evidence of one’s

identity since it represents relatively unique biological characteristics which

distinguish one person from another. As biometric data can be usually linked

to only one individual it acts as a powerful, unique identifier that brings

together disparate pieces of personal information about an individual. As a

relatively unique identifier, biometric data not only allows individuals to be

tracked, but it also creates the potential for the collection of an individual’s

information and its incorporation into a comprehensive profile. Central

databases, data matching/linking and profiling are technical factors that

facilitate ‘function creep’ (the slippery slope according to which information

can be used for functions other than that for which it was collected). Privacy

advocates believe that any identification scheme can be carried out with a
PART H

hidden agenda and that the slippery slope effect can be relevant to several

factors such as motivations of governments and business, and on the

existence of safeguards. The special nature of biometric data makes function

creep more likely and even attractive. The legal measures possible to control

function creep are still limited. However, there are several ways in which

function creep can be curtailed. They include (i) limiting the amount of data

that is collected for any stated purpose; (ii) enabling regulation to limit

technological access to the system; (iii) concerted debates with all

stakeholders and public participation; (iv) dispersion of multiple enablers for a

system; and (v) enabling choices for user participation.

240 This Court held in Puttaswamy that a reasonable expectation of

privacy requires that data collection must not violate the autonomy of an

individual. The Court has held consent, transparency, and control over

information as the cornerstones over which the fundamentals of informational

privacy stand. The Court had made it clear that an individual has the right to

prevent others from using his or her image, name and other aspects of

personal life and identity for commercial purposes without consent. An

Aadhaar number is a unique attribute of an individual. It embodies unique

information associated with an individual. The manner in which it is to be used

has to be dependent on the consent of the individual.
PART H

241 Section 57 of the Aadhaar Act allows the use of an Aadhaar number for

establishing the identity of an individual “for any purpose” by the state, private

entities and persons. Allowing private entities to use Aadhaar numbers will

lead to commercial exploitation of an individual’s personal data without his/her

consent and could lead to individual profiling. The contention is that
Section
fails to meet the requirements set out in the Puttaswamy judgment.

In this regard, reference must be drawn to a 2010 policy paper. A group of

officers was created by the Government of India to develop a framework for a

privacy legislation that would balance the need for privacy protection with

security and sectoral interests, and respond to the need for domain legislation

on the subject. An approach paper for the legal framework for a proposed

legislation on privacy was prepared by the group and was uploaded on the

website of the Government of India. The paper noted the repercussions of

having a project based on a database of unique individual IDs:

“Data privacy and the need to protect personal information is
almost never a concern when data is stored in a
decentralized manner. However, all this is likely to change
with the implementation of the UID Project. One of the
inevitable consequences of the UID Project will be that the
UID Number will unify multiple databases. As more and more
agencies of the government sign on to the UID Project, the
UID Number will become the common thread that links all
those databases together. Over time, private enterprise could
also adopt the UID Number as an identifier for the purposes
of the delivery of their services or even for enrolment as a
customer...Once this happens, the separation of data that
currently exists between multiple databases will vanish…

Such a vast interlinked public information database is
unprecedented in India. It is imperative that appropriate steps
be taken to protect personal data before the vast government
PART H

storehouses of private data are linked up and the threat of
data security breach becomes real.”445

The Paper highlighted the potential of exploitation that the UID project

possessed. The potential was that the UID data could be used directly or

indirectly by market forces for commercial exploitation as well as for intrusions

by the State into citizens’ privacy. The Paper contained an incisive

observation in regard to the exploitation of citizens’ data by private entities:

“Similarly, the private sector entities such as banks, telecom
companies, hospitals etc are collecting vast amount of private
or personal information about individuals. There is
tremendous scope for both commercial exploitation of this
information without the consent/ knowledge of the individual
consent and also for embarrassing an individual whose
personal particulars can be made public by any of these
private entities.
The IT Act
does provide some safeguards
against disclosure of data / information stored electronically,
but there is no legislation for protecting the privacy of
individuals for all information that may be available with
private entities
In view of the above, privacy of individual is to be protected
both with reference to the actions of Government as well as
private sector entities.”446

The Paper highlighted the need for a stringent privacy protection mechanism,

which could prevent individual data from commercial exploitation as well as

individual profiling.

242 Reference must also be drawn to Chapter V of the National

Identification Authority of India Bill, 2010, which provided for the constitution of

445Government of India, Approach Paper for a Legislation on Privacy (2010), available at
http://www.prsindia.org/uploads/media/UID/aproach_paper.pdf
446 Ibid
PART H

an Identity Review Committee. The proposed Committee was to be entrusted

to carry out the function of ascertaining the extent and pattern of usage of

Aadhaar numbers across the country. The Committee was required to prepare

a report annually in relation to the extent and pattern of usage of the Aadhaar

numbers along with its recommendations thereon and submit it to the Central

Government. The idea behind the establishment of such a Committee was to

limit the extent to which Aadhaar numbers could be used. These provisions

have not been included in the
Aadhaar Act, 2016
. Instead, the Act allows the

use of Aadhaar number for any purpose by the State as well as private

entities. This is a clear case of overbreadth and an instance of manifest

arbitrariness.
Section 57
indicates that the legislature has travelled far beyond its

stated object of ensuring targeted delivery of social welfare benefits. Allowing

the Aadhaar platform for use by private entities overreaches the purpose of

enacting the law. It leaves bare the commercial exploitation of citizens data

even in purported exercise of contractual clauses. This will result in a violation

of privacy and profiling of citizens.
PART H

An article titled “Privacy and Security of Aadhaar: A Computer Science

Perspective”447 underlines the risk of profiling and identification that is

possible by the use of Aadhaar numbers. It states:

“The Aadhaar number is at the heart of the Aadhaar scheme
and is one of the biggest causes of concern. Recall that the
Aadhaar number is a single unique identifier that must
function across multiple domains. Given that the Aadhaar
number must necessarily be disclosed for obtaining services,
it becomes publicly available, not only electronically but also
often in human readable forms as well, thereby increasing the
risk that service providers and other interested parties may be
able to profile users across multiple service domains. Once
the Aadhaar number of an individual is (inevitably) known,
that individual may be identified without consent across
domains, leading to multiple breaches in privacy.”

244 The risks which the use of Aadhaar “for any purpose” carries is that

when it is linked with different databases (managed by the State or by private

entities), the Aadhaar number becomes the central unifying feature that

connects the cell phone with geo-location data, one’s presence and

movement with a bank account and income tax returns, food and lifestyle

consumption with medical records. This starts a “causal link” between

information which was usually unconnected and was considered trivial. 448

Thus, linking Aadhaar with different databases carries the potential of being

profiled into a system, which could be used for commercial purposes. It also

carries the capability of influencing the behavioural patterns of individuals, by

affecting their privacy and liberty. Profiling individuals could be used to create

co-relations between human lives, which are generally unconnected. If the

447 Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of Aadhaar: A Computer
Science Perspective, Economic & Political Weekly (16 September 2017), Vol. 52, available at
https://www.epw.in/journal/2017/37/special-articles/privacy-and-security-aadhaar.html
448 Nishant Shah, Digital Native: Cause an effect, The Indian Express (17 June 2018), available at

https://indianexpress.com/article/technology/social/digital-native-cause-an-effect-5219977/
PART H

traces of Aadhaar number are left in every facet of human life, it will lead to a

loss of privacy. The repercussions of profiling individuals were anticipated in

1966 by Alexander Solzhenitsyn in ‘Cancer Ward’449. His views are prescient

to our age:

“As every man goes through life he fills in a number of forms
for the record, each containing a number of questions. A
man’s answer to one question on one form becomes a little
thread, permanently connecting him to the local centre of
personnel records administration. There are thus hundreds of
little threads radiating from every man, millions of threads in
all. If these threads were suddenly to become visible, the
whole sky would look like a spider’s web, and if they
materialised as elastic bands, buses, trams and even people
would all lose the ability to move, and the wind would be
unable to carry torn newspapers or autumn leaves along the
streets of the city. They are not visible, they are not material,
but every man is constantly aware of their existence… Each
man, permanently aware of his own invisible threads,
naturally develops a respect for the people who manipulate
the threads…”

The invisible threads of a society networked on biometric data have grave

portents for the future. Unless the law mandates an effective data protection

framework, the quest for liberty and dignity would be as ephemeral as the

wind.

245 A novelist’s vision is threatening to become a reality in our times.

Profiling can impact individuals and their behaviour. Since data collection

records the preferences of an individual based on the entities which requested

for proof of identity, any such pattern in itself is crucial data that could be used

to predict the emergence of future choices and preferences of individuals.

449 Aleksandr Solzhenitsyn, Cancer Ward, The Bodley Head (1968)
PART H

These preferences could also be used to influence the decision making of the

electorate in choosing candidates for electoral offices. Such a practice would

be unhealthy for the working of a democracy, where a citizen is deprived of

free choice. In the modern digital era, privacy protection does not demand that

data should not be collected, stored, or used, but that there should be

provable guarantees that the data cannot be used for any purpose other than

those that have been approved. In any of the programmes employed, it is

imperative that the state takes strong data privacy measures to prevent theft

and abuse. Moreover, it must be realized that an identification system like

Aadhaar, which is implemented nationwide, will always be more prone to

external threats. The State is always open to threat from its adversaries, and

a national level identification system can become an easy target for anyone

looking to cause serious damage as individuals’ biometric credentials are at

risk in the process. Therefore, it is vital that state action ascertain security

vulnerabilities while developing an identification system. These issues have

not been dealt with by the Aadhaar Act. There is currently limited legislative or

other regulatory guidance to specify whether private or public organisations

are prevented from sharing or selling biometric information to others.
Section
cannot be applied to permit commercial exploitation of the data of

individuals or to affect their behavioural patterns.
Section 57
does not pass

constitutional muster. It is manifestly arbitrary, suffers from overbreadth and

violates
Article 14.
PART H

246 At its core, the Aadhaar Act attempts to create a method for

identification of individuals so as to provide services, subsidies and other

benefits to them. The Preamble of the Act explains that the architecture of the

Act seeks to provide “efficient, transparent and targeted delivery of subsidies,

benefits and services” for which the expenditure is incurred from the

Consolidated Fund to resident individuals.
Section 7
of the Act makes the

proof of possession of Aadhaar number or Aadhaar authentication as a

mandatory condition for receipt of a subsidy, benefit or service, which incurs

expenditure from the Consolidated Fund of India. The scope of
Section 7
is

very wide. It leaves the door open for the government to route more benefits,

subsidies and services through the Consolidated Fund of India and expand

the scope of Aadhaar. Any activity of the government paid for from the

Consolidated Fund of India ranging from supply of subsidised grains and

LPG, to use of roads and civic amenities, healthcare, and even rebates to tax

payers could come under such an umbrella. The scope of
Section 7
could

cover every basic aspect of the lives of citizens. The marginalized sections of

society, who largely depend upon government’s social security schemes and

other welfare programmes for survival could be denied basic living conditions

because of a mismatch in biometric algorithms. The notifications issued by

government under
Section 7
of the Act, which require mandatory proof of

possession of an Aadhaar number or requiring authentication, cover 252

schemes, including schemes for children (such as benefits under the Sarva

Shiksha Abhiyan or getting meals under the Mid-day meal scheme, painting
PART H

and essay competitions for children, scholarships on merit), schemes relating

to rehabilitation of bonded labour and human trafficking, scholarship schemes

for SC/ST students, universal access to tuberculosis care, pensions, schemes

relating to labour and employment, skill development, personnel and training,

agriculture and farmers’ welfare, primary and higher education, social justice,

benefits for persons with disabilities, women and child development, rural

development, food distribution, healthcare, panchayati raj, chemicals &

fertilizers, water resources, petroleum and natural gas, science and

technology, sanitation, textiles, urban development, minority affairs, road

transport, culture, tourism, urban housing, tribal affairs and stipends for

internship for students. The list is ever expanding and is endless. These

notifications cover a large number of facilities provided by the government to

its citizens. Every conceivable facility can be brought under the rubric of

Section 7
. From delivery to deliverance, almost every aspect of the cycle of

life would be governed by the logic of Aadhaar.

247 When Aadhaar is seeded into every database, it becomes a bridge

across discreet data silos, which allows anyone with access to this information

to re-construct a profile of an individual’s life. It must be noted while Section

2(k) of the Aadhaar Act excludes storage of individual information related to

race, religion, caste, tribe, ethnicity, language, income or medical history into

CIDR, the mandatory linking of Aadhaar with various schemes allows the

same result in effect. For instance, when an individual from a particular caste
PART H

engaged in manual scavenging is rescued and in order to take benefit of

rehabilitation schemes, she/he has to link the Aadhaar number with the

scheme, the effect is that a profile as that of a person engaged in manual

scavenging is created in the scheme database. The stigma of being a manual

scavenger gets permanently fixed to her/his identity. What the Aadhaar Act

seeks to exclude specifically is done in effect by the mandatory linking of

Aadhaar numbers with different databases, under cover of the delivery of

benefits and services.

Moreover, the absence of proof of an Aadhaar number would render a

resident non-existent in the eyes of the State, and would deny basic facilities

to such residents.
Section 7
thus makes a direct impact on the lives of

citizens. If the requirement of Aadhaar is made mandatory for every benefit or

service which the government provides, it is impossible to live in

contemporary India without Aadhaar. It suffers from the vice of being

overbroad. The scope of subsidies provided by the government (which incur

expenditure from the Consolidated Fund) is not the same as that of other

benefits and services which the government provides to its citizens.

Therefore, benefits and services cannot be measured with the same yardstick

as subsidies. The inclusion of services and benefits in
Section 7
is a pre-

cursor to the kind of function creep which is inconsistent with privacy and

informational self-determination. The broad definitions of the expressions

‘services and ‘benefits’ would enable government to regulate almost every
PART H

facet of its engagement with citizens under the Aadhaar platform.
Section 7

suffers from clear overbreadth in its uncanalised application to services and

benefits.

248 The open-ended nature of the provisions of
Section 7
is apparent from

the definition of ‘benefit’ in
Section 2(f)
and of ‘service’ in
Section 2(w)
.

‘Benefit’ is defined to mean any advantage, gift, reward, relief or payment in

cash or kind provided to an individual or a group of individuals. ‘Service’ is

defined to mean any provision, facility, utility, or any other assistance provided

in any form to an individual or a group of individuals. These are broad and

unstructured terms under which the government can cover the entire gamut of

its activities involving an interface with the citizen. The provision has made no

requirement to determine whether in the first place biometric identification is

necessary in each case and whether a less intrusive modality should suffice.

Both the definitions include such other services as may be notified by the

Central government. The residuary clause is vague and ambiguous and

leaves it to the Central government at its uncharted discretion to expand on

what benefits and services would be covered by the legislation. The manner

in which these definitions have been expansively applied to cover a wide

range of activities is attributable to the vagueness implicit in
Section 7
.

Can the provisions of
Section 7
be applied with any justification to pensions

payable on account of the past service rendered by a person to the state?
PART H

Pension, it is well settled, is not a largesse or bounty conferred by the state.

Pension, as a condition of service, attaches as a recompense for the long

years of service rendered by an individual to the state and its instrumentalities.

Pensioners grow older with passing age. Many of them suffer from the

tribulations of old age including the loss of biometrics. It is unfair and arbitrary

on the part of the state to deny pension to a person entitled to it by linking

pensionary payments to the possession of an Aadhaar number or to its

authentication. A right cannot be denied on the anvil of requiring one and only

one means of identification. The pension disbursing authority is entitled to lay

down regulations (which are generally speaking, already in place) to ensure

the disbursal of pension to the person who is rightfully entitled. This aim of the

government can be fulfilled by other less intrusive measures. The requirement

of insisting on an Aadhaar number for the payment of pensionary benefits

involves a breach of the principle of proportionality. Such a requirement would

clearly be contrary to the mandate of
Article 14.

Similarly, the state as a part of its welfare obligations provides numerous

benefits to school going children, including mid-day meals or scholarships, to

children belonging to the marginalised segments of the society. Should the

disbursal of these benefits be made to depend upon a young child obtaining

an Aadhaar number or undergoing the process of authentication? The object

of the state is to ensure that the benefits which it offers are being availed of by

genuine students who are entitled to them. This legitimate aim can be fulfilled
PART H

by adopting less intrusive measures as opposed to the mandatory

enforcement of the Aadhaar scheme as the sole repository of identification.

The state has failed to demonstrate that a less intrusive measure other than

biometric authentication will not subserve its purposes. That the state has

been able to insist on adherence to the Aadhaar scheme without exception is

a result of the overbreadth of
Section 7
. Consequently, the inclusion of

benefits and services in
Section 7
suffers from a patent ambiguity, vagueness

and overbreadth which renders the inclusion of services and benefits arbitrary

and violative of
Article 14.

249 Various entities are involved in the Aadhaar project. Their inter-

dependencies require a greater onus to be put on them so as to match

privacy and security requirements. The architecture of Aadhaar treats

individuals as data. However, the core must be about personhood. The

architecture of Aadhaar is destroyed by a lack of transparency, accountability

and limitations. Safeguards for protection of individual rights ought to have

been explicitly guaranteed by design and default.450 The presence of

accountability and transparency within the Aadhaar architecture ought to be a

necessary requirement so as to overcome the fear of the loss of privacy and

liberty. Without these safeguards, the legislation and its architecture cannot

pass muster under proportionality.

450 Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226
PART H

It is also important to highlight that identity is a vital facet of personality and

hence of the right to life under
Article 21
of the Constitution. Identity is

essential and inalienable to human relationships and in the dealings of an

individual with the State. The notion that individuals possess only one, or at

the least, a dominant identity is not sound constitutional principle. The

Constitution has been adopted for a nation of plural cultures. It is accepting of

diversity in every walk of life. Diversity of identity is an expression of the

plurality which constitutes the essence of our social culture. Amartya Sen in

‘The Argumentative Indian’451 demonstrates the untenability of the notion

that identity is exclusive. He rejects the notion of an exclusive identity as

“preposterous”, observing that in different settings, individuals rely upon and

assert varying identities:

“Each of us invokes identities of various kinds in disparate
contexts. The same person can be of Indian origin, a Parsee,
a French citizen, a US resident, a woman, a poet, a
vegetarian, an anthropologist, a university professor, a
Christian, a bird watcher, and an avid believer in extra-
terrestrial life and of the propensity of alien creatures to ride
around the cosmos in multicoloured UFOs. Each of these
collectivities, to all of which this person belongs, gives him or
her a particular identity. They can all have relevance,
depending on the context.”452

Sen’s logic, drawn from how individuals express their personalities in the real

world, has a strong constitutional foundation. In the protection which it grants

to a diverse set of liberties and freedoms, the Constitution allows for the

assertion of different identities. The exercise of each freedom may generate a

distinct identity. Combinations of freedoms are compatible with composite

451 Amartya Sen, The Argumentative Indian, Penguin (2005), at page 350
452 Ibid, at page 350
PART H

identities. Sen also rejects the notion that individuals “discover their identities

with little room for choice”. The support for such a notion, as he observes,

comes from communitarian philosophy, according to which identity precedes

choice:

“As Professor Michael Sandel has explained this claim
(among other communitarian claims) : ‘community describes
not just what they have as fellow citizens but also what they
are, not a relationship they choose (as in a voluntary
association) but an attachment they discover, not merely an
attribute but a constituent of their identity In this view, identity
comes before reasoning and choice.”453

Sen rejects the above idea on the ground that it does not reflect a universally

valid principle. Undoubtedly, some identities are ‘given’. But even here, as

Sen explains, the issue is not whether an identity can be selected by an

individual in all cases but whether the individual has a choice over the relative

weight to be ascribed to different identities:

“The point at issue is not whether any identity whatever can
be chosen (that would be an absurd claim), but whether we
have choices over alternative identities or combinations of
identities, and perhaps more importantly, whether we have
some freedom in deciding what priority to give to the various
identities that we may simultaneously have. People’s choices
may be constrained by the recognition that they are, say,
Jewish or Muslim, but there is still a decision to be made by
them regarding what importance they give to that particular
identity over others that they may also have (related, for
example, to their political beliefs, sense of nationality,
humanitarian commitments or professional attachments).”454

Sen reasons that identity is a plural concept and the relevance of different

identities depends on the contexts in which they are asserted:

453 Ibid, at page 350
454 Ibid, at page 351
PART H

“Identity is thus a quintessentially plural concept, with varying
relevance of different identities in distinct contexts. And, most
importantly, we have choice over what significance to attach
to our different identities. There is no escape from reasoning
just because the notion of identity has been invoked. Choices
over identities do involve constraints and connections, but the
choices that exist and have to be made are real, not illusory.
In particular, the choice of priorities between different
identities, including what relative weights to attach to their
respective demands, cannot be only a matter of discovery.
They are inescapably decisional, and demand reason-not just
recognition.”455

250 The Constitution recognizes, through the rights which it protects, a

multitude of identities and the myriad forms of its expression. Our political

identities as citizens define our relationship with the nation state. The rights

which the Constitution recognizes as fundamental liberties constitute a

reflection of the identity of the self. As we speak, so we profess who we are.

An artist who paints, the writer who shares a thought, the musician who

composes, the preacher who influences our spirituality and the demagogue

who launches into human sensibilities are all participants in the assertion of

identity. In this participative process, the identities of both the performer and

the audience are continuously engaged. Identity at a constitutional level is

reflected in the entitlement of every individual, protected by its values, to lead

a way of life which defines the uniqueness of our beings. The Constitution

recognizes a multitude of identities, based on the liberties which it recognizes

as an inseparable part of our beings. To be human is to have a multitude of

identities and be guaranteed the right to express it in various forms. The state

455 Ibid, at page 352
PART H

which must abide by a written Constitution cannot require any person to

forsake one or more identities. Constitutional freedoms compel the state to

respect them.

251 Technologies that affect how our identities function must be subject to

constitutional norms. The existence of individual identity is the core of a

constitutional democracy. Addressing the Constituent Assembly on 4th

November 1948, Dr B.R. Ambedkar had emphasised on the importance of

individual identity in our constitutional framework:

“I am glad that the Draft Constitution has… adopted the
individual as its unit.”456

Having an individual identity is an important part of the human condition. The

negation of identity is the loss of personhood, which in turn affects the

freedom of choice and free will. Personhood constructs democracy. It

represents the quality of democracy. Our decided cases have recognized the

intimate relationship between human liberty and identity. The traveller in

Maneka Gandhi v Union of India457
, the employee complaining of sexual

harassment in
Vishaka v State of Rajasthan458
, the guardian of the minor in

Githa Hariharan (Ms) v Reserve Bank of India459
, the bar employee in
Anuj

Garg v Hotel Association of India460
, the transgender in National Legal

456 Constituent Assembly Debates (4 November, 1948)
457 (1978) 1 SCC 248
458 (1997) 6 SCC 241
459 (1999) 2 SCC 228
460 (2008) 3 SCC 1
PART H

Services Authority v Union of India461, the tribal worker in
Madhu Kishwar

v State of Bihar462
and the oppressed victim of state violence in
Nandini

Sundar v State of Chattisgarh463
are all engaged in the assertion of identity.

Puttaswamy recognizes the role of the individual as “the core of constitutional

focus” and “the focal point of the Constitution”. Justice Kaul’s concurring

opinion recognised that the individual has the right to control her identity.464

It was submitted by the petitioners that a unique identity number infringes the

identity of the individual since it reduces every resident to a number.

Ascribing to the holder of an Aadhaar card, a unique identity number must not

infringe constitutional identities. The Aadhaar Act indicates, in its Statement

of Objects and Reasons, that correct identification of targeted beneficiaries is

necessary and that a failure to establish the identity of an individual is a major

hindrance in the disbursal of welfare benefits.
Section 3(1)
recognizes the

entitlement of every resident to obtain an Aadhaar number.
Section 4(3)

provides that an Aadhaar number may be accepted as proof of identity.

Section 7(1)
indicates that its purpose is for establishing the identity of an

individual for the receipt of services, benefits or subsidies drawn from the

Consolidated Fund. These provisions cannot be allowed to displace

constitutional identities. Nor can the provisions of
Section 7
reduce an

individual to a nameless or faceless person.

461 (2014) 5 SCC 438
462 (1996) 5 SCC 125
463 (2011) 7 SCC 547
464 Ibid
PART H

252 Aadhaar is about identification and is an instrument which facilitates a

proof of identity. It must not obliterate constitutional identity. The definition of

demographic information in
Section 2(k)
excludes race, religion, caste, tribe,

ethnicity, language, records of entitlement, income or medical history.

However, as has been specifically discussed before, the linking of the

Aadhaar number to different databases is capable of profiling an individual,

which could include information regarding her/his race, religion, caste, tribe,

ethnicity, language, records of entitlement, income or medical history. Thus,

the impact of technology is such that the scheme of Aadhaar can reduce

different constitutional identities into a single identity of a 12-digit number and

infringe the right of an individual to identify herself/himself with choice.

253 Social security schemes and programmes are a medium of existence of

a large segment of society. Social security schemes in India, such as the

PDS, were introduced to protect the dignity of the marginalized. Exclusion

from these schemes defeats the rationale for the schemes which is to

overcome chronic hunger and malnutrition. Exclusion is violative of human

dignity. As discussed previously in detail, the statistics recorded in

government records and the affidavits filed by the petitioners point out glaring

examples of exclusion due to technical errors in Aadhaar. The authentication

failures in the Aadhaar scheme have caused severe disruptions particularly in

rural India. Exclusion as a consequence of biometric devices has a

disproportionate impact on the lives of the marginalized and poor. This Court
PART H

cannot turn a blind eye to the rights of the marginalized. It may be the fashion

of the day to advance the cause of a digital nation. Technology is undoubtedly

an enabler. It has become a universal unifier of our age. Yet, the interface

between technology and basic human rights cannot be oblivious to social

reality. Compulsive linking of biometrics to constitutional entitlements should

not result in denial to the impoverished. There exists a digital divide. To

railroad those on one side of that divide unconcerned about social and

technical constraints which operate in society is to defeat the purpose of social

welfare. The Court has to be specifically conscious of the dignity of the

underprivileged. The Court must fulfill its role of protecting constitutional

values even if it affects a small percentage of the population. The exclusion

errors in this case have led to grave injustice to the marginalized. The Court,

therefore, has to play an active role in protecting their dignity.

254 The institution of rights places a heavy onus on the State to justify its

restrictions. No right can be taken away on the whims and fancies of the

State. The State has failed to justify its actions and to demonstrate why

facilitating the targeted delivery of subsidies, which promote several rights

such as the right to food for citizens, automatically entails a sacrifice of the

right to privacy when both these rights are protected by the Constitution. One

right cannot be taken away at the behest of the other especially when the

State has been unable to satisfy this Court that the two rights are mutually

exclusive. The State has been unable to respond to the contention of the
PART H

petitioners that it has failed to consider that there were much less rights-

invasive measures that could have furthered its goals. The burden of proof on

the State was to demonstrate that the right to food and other entitlements

provided through the Aadhaar scheme could not have been secured without

the violating the fundamental rights of privacy and dignity. Dworkin in his

classical book “Taking Rights Seriously”, while answering the question

whether some rights are so important that the State is justified in doing all it

can to maintain even if it abridges other rights, states that:

“But no society that purports to recognize a variety of rights,
on the ground that a man’s dignity or equality may be invaded
in a variety of ways, can accept such a principle… If rights
make sense, then the degrees of their importance cannot
be so different that some count not at all when others are
mentioned.”465 (Emphasis supplied)

255 There is no antinomy between the right to privacy and the legitimate

goals of the State. An invasion of privacy has to be proportional to and

carefully tailored for achieving a legitimate aim. While the right to food is an

important right and its promotion is a constitutional obligation of the State, yet

the right to privacy cannot simply and automatically yield to it. No legitimate

goal of the State can be allowed at the cost of infringement of a fundamental

right without passing the test of constitutionality. While analysing the

architecture of Aadhaar, this Court has demonstrated how the purported

safeguards in the Aadhaar architecture are inadequate to protect the integrity

of personal data, the right of informational self-determination and above all

rights attributable to the privacy-dignity-autonomy trilogy. It is also concluded

465 Ronald Dworkin, Taking Rights Seriously (1977), at pages 203-204
PART H

that the Aadhaar scheme is capable of destroying different constitutional

identities. The financial exclusion caused due to errors in Aadhaar based

authentication violate the individual’s right to dignity. The Aadhaar scheme

causes an unwarranted intrusion into fundamental freedoms guaranteed

under the Indian Constitution since the respondents have failed to

demonstrate that these measures satisfy the test of necessity and

proportionality.

H.5 Dignity and financial exclusion

256 Our jurisprudence reflects a keen awareness of the need to achieve

dignity. The nine judge Bench decision in Puttaswamy also emphasized the

seminal value of dignity in our constitutional scheme. Human dignity is a

strengthening bond in the relationship between Parts III and IV of the

Constitution. Reading the Directive Principles contained in Part IV in the

context of the right to life (in Part III of the Constitution) has significant

implications both for the substantive content of the right and on the ability of

the state in pursuit of its positive obligation to secure conditions of a dignified

existence. Dignity is an integral element of natural law and an inalienable

constitutional construct. To lead a dignified life is a constitutional assurance to

an individual. Dr Ambedkar conceptualized four basic premises on which a

political democracy can rest:

“Political Democracy rests on four premises which may be set
out in the following terms:
PART H

(i) The individual is an end in himself.

(ii) That the individual has certain inalienable rights which
must be guaranteed to him by the Constitution.

(iii) That the individual shall not be required to
relinquish any of his constitutional rights as a
condition precedent to the receipt of a privilege.

(iv) That the State shall not delegate powers to private
persons to govern others.”466 (Emphasis supplied)

Interpreting the words of Dr Ambedkar in a constitutional context, any action

on the part of the State which forces an individual to part with her or his dignity

or any other right under Part III will not be permissible.

257 The experience of living with chronic hunger; recurring uncertainty

about the availability of food; debt bondage; low and highly underpaid work;

self-denial; and sacrifice of other survival needs, being discriminated

against467 are instances of the loss of dignity for the marginalized. The State

has social security programmes and legislation to improve the living conditions

of the marginalized and to protect their dignity and means of livelihood.

However, as documented in the works of Sainath, Dreze, Sen and other

authors, India has “utterly poor standards of the social services provided to

common folk, whether it is the Mid-day Meal Scheme, the Sarva Shiksha

Abhiyan, Integrated Child Development Services, Public Distribution system,

healthcare at the primary health centres, district hospitals and even public

466Dr. Babasaheb Ambedkar: Writings and Speeches (Vol. 1), Dr. Ambedkar Foundation (2014)
467Harsh Mander, Living with Hunger: Deprivation among the Aged, Single Women and People with Disability,
Economic & Political Weekly (April 26, 2008), Vol. 43, available at
https://www.epw.in/journal/2008/17/special-articles/living-hunger-deprivation-among-aged-single-women-and-
people
PART H

hospitals in the state capitals”468. This manner of addressing the deprivations

faced by the marginalized crushes their dignity.

Any action or inaction on the part of the State which is insensitive to and

unconcerned about protecting the dignity of the marginalized is constitutionally

impermissible. Denial of benefits arising out of any social security scheme

which promotes socio-economic rights of the marginalized, would not be

legitimate under the Constitution, for the reason that such denial violates

human dignity. No individual can be made to part with his or her dignity.

Responsibility for protection of dignity lies not only with governments but also

with individuals, groups and entities.

It is in the above background that this Court must deal with the next contention

of the petitioners. The submission of the petitioners is that identity recognition

technology may be based on a system which is deterministic or probabilistic.

Biometric authentication systems work on a probabilistic model. For the

purposes of authentication, a comparison is through a template which reduces

the finger print to a scale and then, a minutea. The claim of the petitioners is

that as a result, identities are reduced from certainty to a chance.

468Dignity, Not Mere Roti, Economic & Political Weekly (10 August, 2013), Vol. 48, available at
https://www.epw.in/journal/2013/32/editorials/dignity-not-mere-roti.html
PART H

258 Section 7 of the Aadhaar Act makes it mandatory for an individual to

undergo authentication or furnish proof of possession of an Aadhaar number

in order to avail a subsidy, benefit or service, which incurs expenditure from

the Consolidated Fund of India. In the Aadhaar based Biometric

Authentication, the Aadhaar number and biometric information submitted by

an Aadhaar number holder are matched with the biometric information stored

in the CIDR. This may be fingerprints-based or iris-based authentication or

other biometric modalities based on biometric information stored in the

CIDR.469

It has been submitted that failure of the authentication process results in

denial of a subsidy, benefit or service contemplated under
Section 7
of the

Act. It has been contended that non-enrolment in the Aadhaar scheme and

non-linking of the Aadhaar number with the benefit, subsidy or service causes

exclusion of eligible beneficiaries. It is the submission of the petitioners that

authentication of biometrics is faulty, as biometrics are probabilistic in nature.

It is the case of the petitioners that Aadhaar based biometric authentication

often results in errors and thus leads to exclusion of individuals from

subsidies, benefits and services provided under
Section 7
. Across the country,

it has been urged, several persons are losing out on welfare entitlements

because of a biometric mis-match. Mr Divan has argued in his written

submissions, that “the project is not an ‘identity’ project but ‘identification’

469 UIDAI, Aadhaar Authentication, available at https://uidai.gov.in/authentication.html
PART H

exercise and unless the biometrics work, a person in flesh and blood, does not

exist for the state”.

In order to deal with this contention, it is necessary to understand whether

biometrics authentication can result in errors in matching. People are identified

by three basic means: “by something they know, something they have, or

something they are”.470 Biometrics fall within the last category, and, as such,

should presumably be less susceptible to being copied or forged. However,

various factors can reduce the probability of accurate human identification,

and this increases the probability of a mismatch. Human fallibility can produce

errors.471

259 In the United States of America, the National Academy of Science

published a report in 2010 on biometrics titled “Biometric Recognition:

Challenges & Opportunities”472. The report was based on a study carried out

by several reputed scientists and researchers under the aegis of the National

Research Council, the National Academy of Engineering and the Institute of

Medicine. This report highlights the nature of biometrics as follows:

“Biometric recognition systems are inherently
probabilistic and their performance needs to be assessed
within the context of this fundamental and critical
characteristic. Biometric recognition involves matching, within

470United States General Accounting Office, Technology Assessment: Using Biometrics for Border Security
(2002), available at http://www.gao.gov/new.items/d03174.pdf.

471Jeremy Wickins, The ethics of biometrics: the risk of social exclusion from the widespread use of electronic

identification, Science & Engineering Ethics (2007), at pages 45-54
472Biometric Recognition: Challenges & Opportunities (Joseph N. Pato and Lynette I. Millett eds.), National

Academy of Science- United States of America (2010), available at https://www.nap.edu/read/12720/chapter/1
PART H

a tolerance of approximation, of observed biometric traits
against previously collected data for a subject. Approximate
matching is required due to the variations in biological
attributes and behaviors both within and between persons.”473
(Emphasis supplied)

The report also took note of how changes in an individual’s biometrics may

occur due to a number of factors:

“Biometric characteristics and the information captured
by biometric systems can be affected by changes in age,
environment, disease, stress, occupational factors,
training and prompting, intentional alterations, socio-
cultural aspects of the situation in which the
presentations occurs, changes in human interface with
the system, and so on. As a result, each interaction of the
individual with the system (at enrolment, identification and so
on) will be associated with different biometric information.

Individuals attempting to thwart recognition for one reason or
another also contribute to the inherent uncertainty in biometric
systems.”474 (Emphasis supplied)

The report had also stated that biometrics can result in exclusion of people if it

is used for claiming entitlement to a benefit:

“When used in contexts where individuals are claiming
enrollment or entitlement to a benefit, biometric systems
could disenfranchise people who are unable to
participate for physical, social, or cultural reasons. For
these reasons, the use of biometrics—especially in
applications driven by public policy, where the affected
population may have little alternative to participation—merits
careful oversight and public discussion to anticipate and
minimize detrimental societal and individual effects and to
avoid violating privacy and due process rights.

Social, cultural, and legal issues can affect a system’s
acceptance by users, its performance, or the decisions on
whether to use it in the first place—so it is best to consider
these explicitly in system design. Clearly, the behavior of
those being enrolled and recognized can influence the
accuracy and effectiveness of virtually any biometric system,

473 Ibid, at page 3
474 Ibid
PART H

and user behavior can be affected by the social, cultural, or
legal context. Likewise, the acceptability of a biometric
system depends on the social and cultural values of the
participant populations.”475 (Emphasis supplied)

The report underlines that the relationship between an individual’s biometric

traits and data records has the potential to cause disenfranchisement, when a

section of the population is excluded from the benefits of positive claim

systems. The report thus states that:

“Policies and interfaces to handle error conditions such as
failure to enroll or be recognized should be designed to
gracefully avoid violating the dignity, privacy, or due
process rights of the participants.” (Emphasis supplied)

260 Els Kindt in a comprehensive research titled “Privacy and Data

Protection Issues of Biometric Applications: A Comparative Legal

Analysis”476, deals with the nature of biometrics. The book notes that error

rates in biometric systems lead to a situation where entitled data subjects will

be falsely rejected from the process of database matching. This will adversely

affect the rights of individuals. It has been observed that:

“The error rates imply also that the system will allow
impostors. This is equally important because the security of
biometric systems should be questioned in case of high false
accept rates. This element should be given sufficient weight
in the decision to implement a biometric system for security
purposes…

Other tests clearly indicated increased error rates for young
persons, in case of aging, in particular for face and for
disabled persons. Individuals with health problems may also
be falsely rejected or no longer be recognized, although they

475Ibid, at pages 10-11
476 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis,
Springer (2013)
PART H

were previously enrolled. In some cases, (non-)enrolment will
be a significant problem. It is clear that these data subjects
need additional protection.”477

The book underlines the risk inherent in the limited accuracy of biometrics.478

261 A recently published book titled “Automating Inequality: How High-

Tech Tools Profile, Police, and Punish the Poor”479, authored by Virginia

Eubanks, deals with the impact of data mining, policy algorithms, and

predictive risk models on economic inequality and democracy in America.

Eubanks outlines the impacts of automated decision-making on public

services in the USA through three case studies relating to welfare provision,

homelessness and child protection services. Eubanks looks at these three

areas in three different parts of the United States: Indiana, Los Angeles and

Pittsburgh, to examine what technological automation has done in determining

benefits and the problems it causes. The author records that in Indiana, one

million applications for health care, food stamps, and cash benefits in three

years were denied, because a new authentication system interpreted any

application mistake as “failure to cooperate”. In Los Angeles, an algorithm

calculates the comparative vulnerability of thousands of homeless people so

as to prioritize them for an inadequate pool of housing resources. In

Pittsburgh, child services use an algorithm to predict future behaviour.

Statistics are used to predict which children might be future victims of abuse

477 Ibid, at page 363
478 Ibid
479 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.

Martin's Press (2018)
PART H

or neglect. Eubanks shows how algorithms have taken over for human

interaction and understanding. She has argued that automated decision-

making is much wider in reach and is likely to have repercussions unknown to

non-digital mechanisms, such as nineteenth-century poorhouses in America.

Poorhouses were tax-supported residential institutions to which people were

required to go if they could not support themselves. 480 People who could not

support themselves (and their families) were put up for bid at public auction.

The person who got the contract (which was for a specific time-frame) got the

use of the labour of the poor individual(s) for free in return for feeding,

clothing, housing and providing health care for the individual and his/her

family. The practice was a form of indentured servitude and hardly had any

recourse for protection against abuse. Eubanks considers the technology

based decision-making for poverty management as the extension of the

poorhouses of the 19th century:

“America’s poor and working-class people have long been
subject to invasive surveillance, midnight raids, and punitive
public policy that increase the stigma and hardship of poverty.
During the nineteenth century, they were quarantined in
county poorhouses. During the twentieth century, they were
investigated by caseworkers, treated like criminals on trial.
Today, we have forged what I call a digital poorhouse from
databases, algorithms, and risk models. It promises to eclipse
the reach and repercussions of everything that came before.

Like earlier technological innovations in poverty management,
digital tracking and automated decision-making hide poverty
from the professional middle-class public and give the nation
the ethical distance it needs to make inhuman choices: who
gets food and who starves, who has housing and who
remains homeless, and which families are broken by the
state. The digital poorhouse is a part of a long American

480 Tommy L. Gardner, Spending Your Way to the Poorhouse, Authorhouse (2004), at page 221
PART H

tradition. We manage the individual poor in order to escape
our shared responsibility for eradicating poverty.”481

The author further remarks:

“While poorhouses have been physically demolished, their
legacy remains alive and well in the automated decision-
making systems that encage and entrap today's poor. For all
their high-tech polish, our modern systems of poverty
management - automated decision-making, data mining, and
predictive analysis - retain a remarkable kinship with the
poorhouses of the past. Our new digital tools spring from
punitive, moralistic views of poverty and create a system of
high-tech containment and investigation. The digital
poorhouse deters the poor from accessing public
resources; polices their labor, spending, sexuality, and
parenting; tries to predict their future behavior; and
punishes and criminalizes those who do not comply with
its dictates. In the process, it creates ever-finer moral
distinctions between the 'deserving' and 'undeserving'
poor, categorizations that rationalize our national failure
to care for one another.”482 (Emphasis supplied)

Eubanks builds the argument that automated decision-making technology

does not act as a facilitator for welfare schemes for the poor and only acts as

a gatekeeper:

“New high-tech tools allow for more precise measuring and
tracking, better sharing of information, and increased visibility
of targeted populations. In a system dedicated to supporting
poor and working-class people's self-determination, such
diligence would guarantee that they attain all the benefits they
are entitled to by law. In that context, integrated data and
modernized administration would not necessarily result in bad
outcomes for poor communities. But automated decision-
making in our current welfare system acts a lot like older,
atavistic forms of punishment and containment. It filters and
diverts. It is a gatekeeper, not a facilitator.”483

481 Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.
Martin's Press (2018), at pages 12-13
482 Ibid, at page 16
483 Ibid, at pages 81-82
PART H

The crux of the book is reflected in the following extract:

“We all live in the digital poorhouse. We have always lived in
the world we built for the poor. We create a society that has
no use for the disabled or the elderly, and then are cast aside
when we are hurt or grow old. We measure human worth
based only on the ability to earn a wage, and suffer in a world
that undervalues care and community. We base our economy
on exploiting the labor of racial and ethnic minorities, and
watch lasting inequities snuff out human potential. We see the
world as inevitably riven by bloody competition and are left
unable to recognize the many ways we cooperate and lift
each other up.

But only the poor lived in the common dorms of the
county poorhouse. Only the poor were put under the
diagnostic microscope of scientific clarity. Today, we all
live among the digital traps we have laid for the
destitute.”484 (Emphasis supplied)

Automating Inequality demonstrates the problems with authentication and

algorithmic technology and indicates that the system, which was intended to

provide assistance for the short term and help people out of poverty, has

become a system to perpetuate poverty and injustice.

262 Errors in biometrics matching imply that an individual will not be

considered a part of the biometrics database. If a benefit or service is subject

to the matching of biometrics, then any mismatch would result in a denial of

that benefit or service. Exclusion based on technological errors, with no fault

of the individual, is a violation of dignity. The fate of individuals cannot be left

to the vulnerabilities of technological algorithms or devices. ‘To live is to live

484 Ibid, at page 188
PART H

with dignity’.485 Arbitrary exclusion from entitled benefits or subsidies is a

violation of dignity. If any such project has to survive, then it has to be ensured

that individual dignity is protected. These concerns have to be addressed.

As mentioned earlier, concerns regarding the application of biometrics in the

Aadhaar project were discussed in 2009 by the Biometrics Standards

Committee of UIDAI486, which was of the view that the large magnitude of the

Aadhaar project raised uncertainty about the accuracy of biometrics. 487 The

Strategy Overview488 published by UIDAI, in 2010, had discussed the risks

associated with biometrics perceived by UIDAI itself. Under the heading of

‘Project Risk’, the overview stated the UID project does face certain risks in its

implementation, which have to be addressed through its architecture and in

the design of its incentives. It stated:

“1) Adoption Risks: There will have to be sufficient, early
demand from residents for the UID number. Without critical
mass among key demographic groups (the rural and the
poor) the number will not be successful in the long term. To
ensure this, the UIDAI will have to model de-duplication
and authentication to be both effective and viable for
participating agencies and service providers…

3) Enrolment Risks: The project will have to be carefully
designed to address risks of low enrolment – such as creating
sufficient touch points in rural areas, enabling and motivating
Registrars, ensuring that documentary requirements don't
derail enrolment in disadvantaged communities – as well as
managing difficulties in address verification, name standards,
lack of information on date of birth, and hard to record
fingerprints.

485 Puttaswamy, at para 119
486 UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4
487 Ibid
488 UIDAI, UIDAI Strategy Overview, (2010), available at

http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf
PART H

4) Risks of Scale: The project will have to handle records
that approach one billion in number. This creates
significant risks in biometric de-duplication as well as in
administration, storage, and continued expansion of
infrastructure.

5) Technology risks: Technology is a key part of the UID
program, and this is the first time in the world that storage,
authentication and de-duplication of biometrics are being
attempted on this scale. The authority will have to address
the risks carefully – by choosing the right technology in
the architecture, biometrics, and data management tools;
managing obsolescence and data quality; designing the
transaction services model and innovating towards the
best possible result.

6) Privacy and security risks: The UIDAI will have to ensure
that resident data is not shared or compromised.”489
(Emphasis supplied)

Technological error would result in authentication failures. The concerns

raised by UIDAI ought to have been resolved before the implementation of the

Aadhaar project. Poor connectivity in rural India was a major concern. The

majority of the Indian population lives in rural areas. Even a small percentage

of error results in a population of crores being affected. Denial of subsidies

and benefits to them due to the infirmities of biometric technology is a threat to

good governance and social parity.

263 The issue of exclusion needs to be considered at three different levels:

(i) before the implementation of the Aadhaar Act, when biometrics were being

used since 2009; (ii) under the provisions of the Act; and (iii) at the practical

level during the implementation of the Aadhaar programme.

489 Ibid, at page 38
PART H

Before the enactment of the Aadhaar Act in 2016, the Standing Committee on

Finance, which examined the NIA Bill, was concerned about the impact of

Aadhaar on marginalized sections of society. Since the availing of subsidies

and benefits was to depend upon Aadhaar based authentication, any error in

the authentication would result in a denial of the benefits of social security

schemes for the marginalized. In 2011, the report of the Standing Committee

noted, thus:

“The full or near full coverage of marginalized sections for
issuing Aadhaar numbers could not be achieved mainly owing
to two reasons viz. (i) the UIDAI doesn’t have the statistical
data relating to them; and (ii) estimated failure of
biometrics is expected to be as high as 15% due to a
large chunk of population being dependent on manual
labour.”490 (Emphasis supplied)

The Economic Survey 2016-17 has adverted to authentication failures while

discussing the concept of Universal Basic Income (UBI). The Survey, which is

an official document of the Union government, states that UBI is premised on

the idea that a just society needs to guarantee to each individual a minimum

income which they can count on, and which provides the necessary material

foundation for a life with access to basic goods and a life of dignity.491 UBI was

to be implemented by providing cash transfers (for availing benefits of social

security schemes) to the bank accounts of beneficiaries. The implementation

of UBI was to be undertaken through what is described as the JAM trinity:

490 Forty-Second Report of the Standing Committee on Finance (2011), available at
http://www.prsindia.org/uploads/media/UID/uid%20report.pdf, at page 30
491 Government of India, Economic Survey 2016-17, available at

https://www.thehinducentre.com/multimedia/archive/03193/Economic_Survey_20_3193543a.pdf, at
page 173
PART H

Jan-Dhan Bank Accounts, Aadhaar data and Mobile phones. However, the

Survey noted that while Aadhaar is designed to solve the identification

problem, it cannot solve the “targeting problem” on its own. The Survey

emphasized the need to build state capacity and that “the state will still have

to enhance its capacities to provide a whole range of public goods”.492 The

Survey has recorded the statistics of authentication failures of Aadhaar in

several regions of the country:

“While Aadhaar coverage speed has been exemplary, with
over a billion Aadhaar cards being distributed, some states
report authentication failures: estimates include 49 percent
failure rates for Jharkhand, 6 percent for Gujarat, 5 percent
for Krishna District in Andhra Pradesh and 37 percent for
Rajasthan. Failure to identify genuine beneficiaries results in
exclusion errors.”493

No failure rate in the provision of social welfare benefits can be regarded as

acceptable. Basic entitlements in matters such as foodgrain, can brook no

error. To deny food is to lead a family to destitution, malnutrition and even

death.

264 A recent Office Memorandum dated 19 December 2017 issued by the

Cabinet Secretariat of the Union government494 acknowledges that the

Aadhaar enrolment process has not been completed and that infrastructure

constraints are capable of posing difficulties in online authentication. The

Memorandum provides that those beneficiaries who do not possess Aadhaar,

492 Ibid, at page 174
493 Ibid, at page 194
494 Office Memorandum dated 19 December 2017, available at

https://dbtbharat.gov.in/data/om/Office%20Memorandum_Aadhaar.pdf
PART H

shall be provided a subsidy, benefit or service based on alternate identification

documents as contemplated by Section 7 of the Aadhaar Act. It also requires

efforts to be made to ensure that all beneficiaries are facilitated to get

enrolment under the Aadhaar programme. The Memorandum creates a

mechanism for availing subsidies, benefits or services in cases where

Aadhaar authentication fails:

(i) Departments and Bank Branches may make provisions for IRIS scanners

along with fingerprint scanners wherever feasible;

(ii) In cases of failure due to lack of connectivity, offline authentication

systems such as QR code based coupons, Mobile based OTP or TOTP

may be explored; and

(iii) In all cases where online authentication is not feasible, the benefit/service

may be provided on the basis of possession of Aadhaar, after duly

recording the transaction in a register, to be reviewed and audited

periodically.

The figures from the Economic Survey of India indicate that there are millions

of eligible beneficiaries across India who have suffered financial exclusion.

The Cabinet Secretariat has pro-actively acknowledged the need to address

matters of exclusion by implementing alternate modalities, apart from those

set out in
Section 7
. Options (i) and (ii) above were to be implemented in

future. This exercise should have been undertaken by the government in

advance. Problems have to be anticipated when a project is on the drawing
PART H

board, not after severe deprivations have been caused by the denial of social

welfare benefits.

265 Exclusion of citizens from availing benefits of social security schemes

because of failures or errors in Aadhaar based biometric authentication has

also been documented in research studies and academic writings published

by members of civil society, including Reetika Khera and Jean Dreze. Similar

testimonies have been recorded in affidavits submitted before this Court by

civil society activists. Hearing the voices of civil society must be an integral

part of the structural design of a project, such as Aadhaar. In the absence of a

credible mechanism to receive and respond to feed-back, the state has to

depend on its own personnel who may not always provide reliable and candid

assessments of performance and failure.

266 ABBA (Aadhaar based biometric authentication) refers to the practice of

installing a Point of Sale (PoS) machine equipped with a fingerprint reader and

authenticating a person each time she accesses her entitlements.495 Dreze

has stated that for successful authentication in PDS outlets, several

technologies need to work simultaneously.496 These are497:

495Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
December 2017), available at https://www.epw.in/journal/2017/50/special-articles/impact-aadhaar-welfare-
programmes.html
496Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available at

https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
497 Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public Distribution

System in Hyderabad, Economic & Political Weekly (18 February 2017), Vol. 52, available at
https://www.epw.in/journal/2017/7/web-exclusives/well-done-abba.html
PART H

(a) Seeding of Aadhaar numbers: An eligible individual can become a

beneficiary and access the PDS system only if her Aadhaar number is

correctly seeded onto the PDS database and added to the household

ration card;

(b) Point of Sale (PoS) machines: The process at the PDS outlet is

dependent on the PoS machine. If it malfunctions, no transaction can be

made. The first step in the process requires the dealer to enter the ration

card number of the beneficiary’s household onto the PoS machine;

(c) Internet connection: Successful working of the PoS machine depends on

internet connectivity as verification of the ration card number and the

beneficiary’s biometric fingerprint is carried out over the internet;

(d) Remote Aadhaar servers: Remote Aadhaar servers verify the ration card

number and initiate fingerprint authentication; and

(e) Fingerprint recognition software: The beneficiary proves her identity by

submitting to fingerprint recognition in the PoS machine. Upon verification,

the PoS machine indicates that the beneficiary is genuine and that

foodgrains can be distributed to her household.

The above procedure requires that at the time of purchase of PDS grains each

month, any one person listed on the ration card needs to authenticate

themselves. Similarly, for pensions, elderly persons must go to the point of

delivery to authenticate themselves. Reetika Khera has observed that since

ABBA on PoS machines is currently a monthly activity, so each of its
PART H

associated technologies (correct Aadhaar-seeding, mobile connectivity,

electricity, functional PoS machines and UIDAI servers and fingerprint

recognition) needs to work for a person to get their entitlement.498 Dreze has

referred to the above procedure as “a wholly inappropriate technology for rural

India”499. Network failures and other glitches routinely disable this sort of

technology. Dreze has further observed that in villages with poor connectivity,

it is a “recipe for chaos”500.

267 A government-commissioned sample study501 in Andhra Pradesh to

ascertain the efficiency of Aadhaar-based social programmes in the case of

subsidised grains indicated that technical deficiencies are depriving the poor

of their access to food. The study was commissioned by the state government

after it was found that 22% of the PDS beneficiaries did not take the ration in

the month of May 2015. The sample study, which covered five PDS outlets in

three districts, found that half of the beneficiaries of PDS in the surveyed

areas could not access their ration quota due to glitches, lack of training and

mismatches linked to Aadhaar. In the survey, a majority of beneficiaries

reported fingerprint mismatches and the inability of fair-price shop owners to
Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
December 2017), available at https://www.epw.in/journal/2017/50/special-articles/impact-aadhaar-welfare-
programmes.html
499Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available at

https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/article14631030.ece
500Ibid
501Society for Social Audit, Accountability and Transparency, FP Shops Left Over Beneficiaries Report, available

at
http://www.socialaudit.ap.gov.in/SocialAudit/LoadDocument?docName=Fair%20Price%20Work%20%20Shops
%20(Ration%20Card%20Holders)%20-%20Beneficiaries%20Report.pdf&type=application. See also Aadhaar-
based projects failing the poor, says Andhra govt study, Hindustan Times (7 October 2015), available at
https://www.hindustantimes.com/india/aadhaar-based-projects-failing-the-poor-says-andhra-govt-study/story-
7MFBCeJcfl85Lc5zztON6L.html
PART H

operate point-of-sale (POS) devices correctly as major hurdles. Aadhaar

numbers did not match with ration card numbers in many cases.

Another survey502 of 80 households conducted in Hyderabad finds that despite

the introduction of technology-intensive authentication and payment systems,

a significant number of those vulnerable and dependent on Public Distribution

System (PDS) for food grains are failing to realise their right to food. The

survey revealed that among 80 surveyed households, 89% reported receiving

full entitlements at correct prices even before the introduction of Aadhaar-

based biometric authentication (ABBA). In contrast, 10% of households were

excluded due to authentication failures due to reported errors with one or

more of its five technological components.

268 An article titled “Aadhaar and Food Security in Jharkhand: Pain

without Gain?”503, based on a household survey in rural Jharkhand,

examines various issues related to compulsory ABBA for availing PDS

benefits. The article notes the impact of PDS on the lives of the rural poor,

who visit the ration shop every month. In “their fragile and uncertain lives”, the

PDS provides a “modicum of food and economic security”. The article notes

that in ABBA, the failure of authentication results in denial of food from ration

shops. The household is unable to get food rations for no fault of its own. The
502Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar and the Public Distribution
System in Hyderabad, Economic & Political Weekly, Vol. 52 (18 February 2017), available at
https://www.epw.in/journal/2017/7/web-exclusives/well-done-abba.html
503Jean Drèze, Nazar Khalid, Reetika Khera, and Anmol Somanchi, Aadhaar and Food Security in Jharkhand:

Pain without Gain?, Economic & Political Weekly, Vol. 52 (16 December 2017).
PART H

article comes to the conclusion that the imposition of ABBA on the PDS in

Jharkhand is a case of “pain without gain”, as it has led to serious problems of

exclusion (particularly for vulnerable groups such as widows, the elderly and

manual workers). The article further notes that ABBA has neither failed to

reduce quantity fraud (which is the main form of PDS corruption in

Jharkhand), nor has it helped to address other critical shortcomings of the

PDS in Jharkhand, such as the problem of missing names in ration cards, the

identification of Antyodaya (poorest of the poor) households, or the arbitrary

power of private dealers. The article identifies poor internet connectivity as

one of the reasons for authentication failures and eventual exclusion:

“Sporadic internet connectivity is another major hurdle.
Sometimes, light rain is enough to disrupt connectivity or the
electricity supply. Every step in the ABBA process—ration
card verification, biometric authentication, electronic upload of
transactions, updating NFSA [
National Food Security Act
] lists
and entitlements on the PoS504 [Point of Sale] machine—
depends on internet connectivity. Further, even with stable
connectivity, biometric authentication is not always easy.
Biometric failures are especially common for two groups: the
elderly, and manual labourers. Both are particularly
vulnerable to food insecurity.”505

The article regards the denial of basic services to the poor due to failure of

ABBA as a form of grave injustice:

504 Ibid, at page 51. The article states: “[PoS] is a handheld device installed at every PDS outlet (“ration shop”)
and connected to the Internet. The list of ration cards attached to that outlet, and their respective entitlements,
are stored in the PoS machine and updated every month. When a cardholder turns ups, the PoS machine first
“authenticates” her by matching her fingerprints with the biometric data stored against her Aadhaar number in
the Central Identities Data Repository (CIDR). The machine then generates a receipt with the person’s
entitlements, which are also audible from a recorded message... The transaction details are also supposed to
be entered by the dealer in the person’s ration card.”
505 Ibid, at page 55
PART H

“Imposing a technology that does not work on people
who depend on it for their survival is a grave injustice.”506
(Emphasis supplied)

As we have noted in an earlier part of this judgment, even the Economic

Survey of India 2016-17 found a 49% failure rate for beneficiaries in

Jharkhand and 37% in Rajasthan. Those at the receiving end are the poorest

of the poor.

Reetika Khera looks at the impact of Aadhaar-integration with security

schemes (primarily in MGNREGA, PDS and social security pensions). 507 The

author also discusses briefly the impact of Aadhaar on liquefied petroleum gas

(LPG) subsidy and the application of Aadhaar in the mid-day meal (MDM)

scheme. In coming to its conclusions, the article has relied upon quantitative

data from primary field studies, secondary data from government portals,

figures obtained through queries made under the
Right to Information (RTI)

Act
, and responses to questions in Parliament. In Khera’s words, Aadhaar is

becoming a “tool of exclusion”:

“Savings or exclusion? The government claimed that
Aadhaar integration saved 399 crore up to 31 December
2016 (GoI 2017c). At a given level of benefits, a reduction in
government expenditure in any particular transfer scheme
can be on two counts: removal of ghosts and duplicates
(“efficiency”); and a fall in the number of genuine beneficiaries
(“shrinkage”), for instance, if they do not link their Aadhaar
numbers when required. Across welfare schemes, the
government has been treating any reduction in expenditure
as “savings,” even when it comes from shrinkage. This is true

506Ibid, at page 58
507 Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16
December 2017), available at https://www.epw.in/journal/2017/50/special-articles/impact-aadhaar-welfare-

programmes.html
PART H

for SSP [social security pension] as well. For instance, in
Rajasthan, pensioners were “mistakenly” recorded as dead
and this was presented as Aadhaar-enabled savings (Yadav
2016f). In Jharkhand too, pensioners’ names have been
deleted because they did not complete Aadhaar-seeding
formalities or pensions stopped due to seeding errors (Sen
2017a). Studying 100 pensioners, selected from 10 randomly-
selected villages from five blocks of Ranchi district in
February 2017, Biswas (2017) finds that 84% of her
respondents receive pensions but irregularity in payments
was a big issue. The remaining 16% were not receiving it due
to Aadhaar-related issues.”508

Puja Awasthi documents the plight of individuals suffering from leprosy, who

have been denied pensions due to not being able to get enrolled into the

Aadhaar system. Leprosy can damage fingerprints and thus make an

individual incapable of providing biometrics. Awasthi’s article509 notes that

Aadhaar is capable of causing a denial of benefits or services to 86,000

citizens, who suffer from leprosy.

These writings show how in most cases, an authentication failure means that

the individual/household was denied the benefit of a social security

programme for no fault of their own. Some have gone hungry. Some

reportedly lost their lives.510

508 Ibid, at page 66
509Puja Awasthi, Good enough to vote, not enough for Aadhaar, People’s Archive of Rural India, available at
https://ruralindiaonline.org/articles/good-enough-to-vote-not-enough-for-aadhaar
510 Yet another Aadhaar-linked death? Denied rations for 4 months, Jharkhand woman dies of hunger, Scroll (3

Feb. 2018), available at: https://scroll.in/article/867352/yet-another-aadhaar-linked-death-jharkhand-woman-
dies-of-hunger-after-denial-of-rations; Denied food because she did not have Aadhaar-linked ration card,
Jharkhand girl dies of starvation, Scroll (16 Oct 2017), available at: https://scroll.in/article/854225/denied-food-
because-she-did-not-have-aadhaar-linked-ration-card-jharkhand-girl-dies-of-starvation
PART H

269 A person’s biometrics change over time. For persons, who are engaged

in manual labour, and persons who are disabled or aged, fingerprints actually

cannot be captured by biometric devices. The material which has been relied

upon in this segment originates from government’s official documents as well

as from distinguished academics and researchers from civil society. There

exist serious issues of financial exclusion. Pensions for the aged particularly

in cases where a pension is earned for past service – are not charity or doles.

They constitute legal entitlements. For an old age pensioner, vicissitudes of

time and age obliterate fingerprints. Hard manual labour severely impacts

upon fingerprints. The elderly, the disabled and the young are the most

vulnerable and a denial of social welfare entitlements verily results in a

deprivation of the right to life. Should the scholarship of a girl child or a mid-

day meal for the young be made to depend on the uncertainties of biometric

matches? Our quest for technology should not be oblivious to the country’s

real problems: social exclusion, impoverishment and marginalisation. The

Aadhaar project suffers from crucial design flaws which impact upon its

structural probity. Structural design in delivering welfare entitlements must be

compliant with structural due process, to be in accord with
Articles 14
and
21.

The Aadhaar project has failed to account for and remedy the flaws in its

framework and design which lead to serious issues of exclusion. Dignity and

rights of individuals cannot be based on algorithms or probabilities.

Constitutional guarantees cannot be subject to the vicissitudes of technology.
PART H

270 Structural due process imposes requirements on public institutions and

projects at the macro level. Structural due process requires that the delivery

of social welfare benefits must be effective and timely. Those who are eligible

for the benefits must not face exclusion. Procedures for the disbursal of

benefits must not be oppressive. They must be capable of compliance both by

those who disburse and by those who receive the benefits. Deployment of

technology must factor in the available of technological resources in every part

of the coverage area and the prevailing levels of literacy and awareness.

Above all, the design of the project will be compliant with structural due

process only if it is responsive to deficiencies, accountable to the beneficiaries

and places the burden of ensuring that the benefits reach the marginalised on

the state and its agencies.

H.6 Constitutional validity of
Section 139AA
of the Income Tax Act
Section 139AA
of the Income Tax Act 1961 which was inserted by the

Finance Act
2017, mandates the quoting of an Aadhaar number in the application

for a Permanent Account Number (PAN) and in the return of income tax. Failure

to intimate an Aadhaar number results in the PAN being deemed invalid

retrospectively.

Section 139AA
reads thus:

“Quoting of Aadhaar number.- (1) Every person who is
eligible to obtain Aadhaar number shall, on or after the 1st
day of July, 2017, quote Aadhaar number-

(i) in the application form for allotment of permanent
account number;
PART H

(ii) in the return of income:

Provided that where the person does not possess
the Aadhaar Number, the Enrolment ID of
Aadhaar application form issued to him at the time
of enrolment shall be quoted in the application for
permanent account number or, as the case may
be, in the return of income furnished by him.

(2) Every person who has been allotted permanent account
number as on the 1st day of July, 2017, and who is eligible to
obtain Aadhaar number, shall intimate his Aadhaar number to
such authority in such form and manner as may be
prescribed, on or before a date to be notified by the Central
Government in the Official Gazette:

Provided that in case of failure to intimate the
Aadhaar number, the permanent account number
allotted to the person shall be deemed to be
invalid and the other provisions of this Act shall
apply, as if the person had not applied for
allotment of permanent account number.

(3) The provisions of this Section shall not apply to such
person or class or classes of persons or any State or part of
any State, as may be notified by the Central Government in
this behalf, in the Official Gazette.

Explanation. - For the purposes of this section, the
expressions –

(i) “Aadhaar number”, “Enrolment” and “resident”
shall have the same meanings respectively
assigned to them in Clauses (a), (m) and (v) of

Section 2
of the Aadhaar (Targeted Delivery of
Financial and other Subsidies, Benefits and
Services) Act, 2016 (18 of 2016);

(ii) “Enrolment ID” means a 28 digit Enrolment
Identification Number issued to a resident at the
time of enrolment.”

272 In Binoy Viswam v Union of India (“Binoy Viswam”),511 a two judge

Bench (consisting of Dr Justice AK Sikri and Justice Ashok Bhushan) upheld

the constitutional validity of
Section 139AA
. Since the issue of whether privacy

is a constitutionally guaranteed right was pending before a Bench of nine

judges (the decision in Puttaswamy was still to be delivered), the two judge

511 (2017) 7 SCC 59
PART H

Bench did not dwell on the challenge to the legislation on the ground of

privacy and under
Article 21.
The Bench examined other submissions based

on
Articles 14
and
and on the competence of Parliament to enact the law.

273 The decision in Binoy Viswam holds that in assessing the

constitutional validity of a law, two grounds of judicial review are available:

(i) The legislative competence of the law-making body which has enacted

the law, over the subject of legislation; and

(ii) Compliance with Part III of the Constitution, which enunciates the

fundamental rights, and with the other provisions of the Constitution.

Holding that a third ground of challenge – that the law in question is arbitrary –

is not available, the decision in Binoy Viswam placed reliance on the

enunciation of law by a three judge Bench in State of A P v McDowell & Co

(Mcdowell).512 McDowell ruled that while a challenge to a statute on the

ground that it violates the principle of equality under
Article 14
is available, a

statute cannot be invalidated on the ground that it is arbitrary:

“43…In other words, say, if an enactment is challenged as
violative of
Article 14
, it can be struck down only if it is found
that it is violative of the equality clause/equal protection
clause enshrined therein…
No enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some or other constitutional
infirmity has to be found before invalidating an Act.”513

512 (1996) 3 SCC 709
513 Ibid, at page 124
PART H

In Binoy Viswam, the two judge Bench observed that the “contours” of

judicial review had been spelt out in
State of Madhya Pradesh v Rakesh

Kohli,514
and more recently in Rajbala v State of Haryana.515 Reiterating the

same position, Binoy Viswam holds:

“81.Another aspect in this context, which needs to be
emphasised, is that a legislation cannot be declared
unconstitutional on the ground that it is “arbitrary” inasmuch
as examining as to whether a particular Act is arbitrary or not
implies a value judgment and the courts do not examine the
wisdom of legislative choices and, therefore, cannot
undertake this exercise.”516

274 In the decision of the Constitution Bench in Shayara Bano v Union of

India (“Shayara Bano”),517 Justice Rohinton Nariman speaking for himself

and Justice Uday U Lalit noticed that the dictum in McDowell, to the effect

that “no enactment can be struck down by just saying it is arbitrary or

unreasonable” had failed to notice the judgment of the Constitution Bench in

Ajay Hasia v Khalid Mujib Sehravardi (“Ajay Hasia”
),518 and a three judge

Bench decision in Dr K R Lakshmanan v State of T N (“Lakshmanan”).519

In Ajay Hasia, the Constitution Bench traced the evolution of the doctrine of

equality beyond its origins in the doctrine of classification.

Ajay Hasia ruled

that since the decision in
E P Royappa v State of Tamil Nadu,520
it had been

held that equality had a substantive content which, simply put, was the

antithesis of arbitrariness. Consequently:

514 (2012) 6 SCC 312
515 (2016) 2 SCC 445
516 Ibid, at page 125
517 (2017) 9 SCC 1
518 (1981) 1 SCC 722
519 (1996) 2 SCC 226
520 (1974) 4 SCC 3
PART H

“16...Wherever therefore there is arbitrariness in State
action whether it be of the legislature or of the executive
or of an “authority” under
Article 12
,
Article 14

immediately springs into action and strikes down such
State action. In fact, the concept of reasonableness and non-

arbitrariness pervades the entire constitutional scheme and is
a golden thread which runs through the whole of the fabric of
the Constitution.”521 (Emphasis supplied)

The principle of arbitrariness was applied for invalidating a State law by the

three judge Bench decision in Lakshmanan. It was, in this context that Justice

Nariman speaking for two Judges in the Constitution Bench in Shayara Bano

held that manifest arbitrariness is a component of
Article 14.
Hence, a law

which is manifestly arbitrary would violate the fundamental right to equality:

“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of law,
would violate
Article 14.
Further, there is an apparent
contradiction in the three-Judge Bench decision in McDowell
when it is said that a constitutional challenge can succeed on
the ground that a law is “disproportionate, excessive or
unreasonable”, yet such challenge would fail on the very
ground of the law being “unreasonable, unnecessary or
unwarranted”. The arbitrariness doctrine when applied to
legislation obviously would not involve the latter challenge but
would only involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid
grounds, therefore, do not seek to differentiate between State
action in its various forms, all of which are interdicted if they
fall foul of the fundamental rights guaranteed to persons and
citizens in Part III of the Constitution.”522

Justice Nariman has observed that even after McDowell, challenges to the

validity of legislation have been entertained on the ground of arbitrariness

521 Ajay Hasia at page 741
522 Ibid, at pages 91-92
PART H

(Malpe Vishwanath Acharya v State of Maharashtra,523 Mardia Chemicals

Ltd. v Union of India,524 State of Tamil Nadu v K Shyam Sunder,525

Andhra Pradesh Dairy Development Corporation Federation v B

Narasimha Reddy526 and K T Plantation Private Limited v State of

Karnataka527).

275 In Shayara Bano, Justice Nariman has adverted to the decisions which

have followed McDowell including the two judge Bench decision in Binoy

Viswam. These decisions, in the view of Justice Nariman, are therefore no

longer good law:

“99. However, in
State of Bihar v. Bihar Distillery Ltd.
, SCC at
para 22, in
State of M.P. v. Rakesh Kohli
, SCC at paras 17 to
19, in
Rajbala v. State of Haryana
, SCC at paras 53 to 65 and
in
Binoy Viswam v. Union of India
, SCC at paras 80 to
82, McDowell was read as being an absolute bar to the use of
“arbitrariness” as a tool to strike down legislation under Article

14. As has been noted by us earlier in this
judgment, McDowell itself is per incuriam, not having noticed
several judgments of Benches of equal or higher strength, its
reasoning even otherwise being flawed. The judgments,
following McDowell are, therefore, no longer good law.”528

In the above extract, Justice Nariman has specifically held that the McDowell

test which barred a challenge to a law on the ground of arbitrariness ignored a

binding Constitution Bench view in Ajay Hasia and that of a three judge

Bench in Lakshmanan. Moreover, the above extract from Shayara Bano

523 (1998) 2 SCC 1
524 (2004) 4 SCC 311
525 (2011) 8 SCC 737
526 (2011) 9 SCC 286
527 (2011) 9 SCC 1
528 Ibid, at page 97
PART H

disapproves of the restriction on judicial review in Binoy Viswam, which

follows McDowell. Justice Kurian Joseph, in the course of his decision has

specifically agreed with the view expressed by Justice Nariman:

“5…However, on the pure question of law that a legislation,
be it plenary or subordinate, can be challenged on the ground
of arbitrariness, I agree with the illuminating exposition of law
by Nariman J. I am also of the strong view that the
constitutional democracy of India cannot conceive of a
legislation which is arbitrary.”

276 In Puttaswamy, the judgment delivered on behalf of four Judges

expressly recognized the impact of
Article 14
in determining whether a law

which is challenged on the ground that it violates
Article 21
meets both the

procedural as well as the substantive content of reasonableness. The Court

held:

“291… the evolution of
Article 21
, since the decision
in Cooper indicates two major areas of change. First, the
fundamental rights are no longer regarded as isolated silos or
watertight compartments. In consequence,
Article 14
has
been held to animate the content of
Article 21.
Second, the
expression “procedure established by law” in
Article 21
does
not connote a formalistic requirement of a mere presence of
procedure in enacted law. That expression has been held to
signify the content of the procedure and its quality which must
be fair, just and reasonable. The mere fact that the law
provides for the deprivation of life or personal liberty is not
sufficient to conclude its validity and the procedure to be
constitutionally valid must be fair, just and reasonable. The
quality of reasonableness does not attach only to the content
of the procedure which the law prescribes with reference to

Article 21
but to the content of the law itself. In other words,
the requirement of
Article 21
is not fulfilled only by the
enactment of fair and reasonable procedure under the law
and a law which does so may yet be susceptible to challenge
on the ground that its content does not accord with the
requirements of a valid law. The law is open to substantive
challenge on the ground that it violates the fundamental
right.”529

529 Ibid, at page 495
PART H

The same principle has been emphasized in the following observations:

“294…Article 14, as a guarantee against arbitrariness, infuses
the entirety of
Article 21.
The interrelationship between the
guarantee against arbitrariness and the protection of life and
personal liberty operates in a multi-faceted plane. First, it
ensures that the procedure for deprivation must be fair, just
and reasonable. Second,
Article 14
impacts both the
procedure and the expression “law”. A law within the meaning
of
Article 21
must be consistent with the norms of fairness
which originate in
Article 14.
As a matter of principle, once

Article 14
has a connect with
Article 21
, norms of fairness and
reasonableness would apply not only to the procedure but to
the law as well.”530

277 In Binoy Viswam, the two judge Bench held that while enrolment

under the Aadhaar Act is voluntary, it was legitimately open to the Parliament,

while enacting
Section 139AA
of the Income Tax Act to make the seeding of

the Aadhaar number with the PAN card mandatory. The court held that the

purpose of making it mandatory under the
Income Tax Act
was to curb black

money, money laundering and tax evasion. It was open to Parliament to do so

and its legislative competence could not be questioned on that ground. The

court held that the legislative purpose of unearthing black money and curbing

money laundering furnished a valid nexus with the objective sought to be

achieved by the law:

“105. Unearthing black money or checking money laundering
is to be achieved to whatever extent possible. Various
measures can be taken in this behalf. If one of the measures
is introduction of Aadhaar into the tax regime, it cannot be
denounced only because of the reason that the purpose
would not be achieved fully. Such kind of menace, which is
deep-rooted, needs to be tackled by taking multiple actions
and those actions may be initiated at the same time. It is the
combined effect of these actions which may yield results and

530 Ibid, at page 496
PART H

each individual action considered in isolation may not be
sufficient. Therefore, rationality of a particular measure
cannot be challenged on the ground that it has no nexus with
the objective to be achieved. Of course, there is a definite
objective. For this purpose alone, individual measure cannot
be ridiculed. We have already taken note of the
recommendations of SIT on black money headed by Justice
M.B. Shah. We have also reproduced the measures
suggested by the Committee headed by Chairman, CBDT on
“Measures to Tackle Black Money in India and Abroad”. They
have, in no uncertain terms, suggested that one singular
proof of identity of a person for entering into finance/business
transactions, etc. may go a long way in curbing this foul
practice. That apart, even if solitary purpose of de-duplication
of PAN cards is taken into consideration, that may be
sufficient to meet the second test of
Article 14.
It has come on
record that 11.35 lakh cases of duplicate PAN or fraudulent
PAN cards have already been detected and out of this 10.52
lakh cases pertain to individual assessees. Seeding of
Aadhaar with PAN has certain benefits which have already
been enumerated. Furthermore, even when we address the
issue of shell companies, fact remains that companies are
after all floated by individuals and these individuals have to
produce documents to show their identity. It was sought to be
argued that persons found with duplicate/bogus PAN cards
are hardly 0.4% and, therefore, there was no need to have
such a provision. We cannot go by percentage figures. The
absolute number of such cases is 10.52 lakhs, which figure,
by no means, can be termed as miniscule, to harm the
economy and create adverse effect on the nation. The
respondents have argued that Aadhaar will ensure that there
is no duplication of identity as biometrics will not allow that
and, therefore, it may check the growth of shell companies as
well.

106. Having regard to the aforesaid factors, it cannot be said
that there is no nexus with the objective sought to be
achieved.”531

The court observed that it was a harsh reality of our times that the benefit of

welfare measures adopted by the State does not reach the segments of

society for whom they are intended:

“125.1.3… However, for various reasons including corruption,
actual benefit does not reach those who are supposed to
receive such benefits. One of the main reasons is failure to

531 Ibid, at pages 134-135
PART H

identify these persons for lack of means by which identity
could be established of such genuine needy class.

Resultantly, lots of ghosts and duplicate beneficiaries are able
to take undue and impermissible benefits. A former Prime
Minister of this country has gone on record to say that out of
one rupee spent by the Government for welfare of the
downtrodden, only 15 paisa thereof actually reaches those
persons for whom it is meant. It cannot be doubted that with
UID/Aadhaar much of the malaise in this field can be taken
care of.”532

In this context, the court also noted that as a result of de-duplication

exercises, 11.35 lakh cases of duplicate PANs / fraudulent PANs had been

detected out of which 10.52 lakh cases pertained to individual assesses. The

court upheld the decision of Parliament as the legislating body of seeding

PANs with Aadhaar as “the best method, and the only robust method of de-

duplication of PAN database”.

278 The edifice of
Section 139AA
is based on the structure created by the

Aadhaar Act.
Section 139AA
of the Income Tax Act 1962 is postulated on the

requirement of Aadhaar having been enacted under a valid piece of

legislation. The validity of the legislation seeding Aadhaar to PAN is

dependent upon and cannot be segregated from the validity of the parent

Aadhaar legislation. In fact, that is one of the reasons why in Binoy Viswam,

the
Article 21
challenge was not adjudicated upon since that was pending

consideration before a larger Bench. The validity of seeding Aadhaar to PAN

under
Section 139AA
must therefore depend upon the constitutional validity of

the Aadhaar Act as it is determined by this Court. Further Rule 114B of the

532 Ibid, at page 146
PART H

Income Tax Rules 1962 provides for a list of transactions for which a person

must quote a PAN card number. Rule 114B requires that a person must

possess a PAN card for those transactions. These are summarized below:

• “Sale or purchase of a motor vehicle or vehicle, as
defined in clause (28) of
section 2
of the Motor Vehicles
Act, 1988 (59 of 1988) which requires registration by a
registering authority under Chapter IV of that Act, other
than two wheeled vehicles.

• Opening an account [other than a time-deposit and a
Basic Savings Bank Deposit Account] with a banking
company or a co-operative bank to which the
Banking
Regulation Act, 1949
(10 of 1949), applies (including any
bank or banking institution referred to in
section 51
of that
Act).

• Making an application to any banking company or a co-
operative bank to which the
Banking Regulation Act, 1949

(10 of 1949), applies (including any bank or banking
institution referred to in
section 51
of that Act) or to any
other company or institution, for issue of a credit or debit
card.

• Opening of a demat account with a depository,
participant, custodian of securities or any other person
registered under sub-section (1A) of
section 12
of the
Securities and Exchange Board of India Act, 1992 (15 of
1992).

• Payment to a hotel or restaurant against a bill or bills at
any one time.

• Payment in connection with travel to any foreign country
or payment for purchase of any foreign currency at any
one time.

• Payment to a Mutual Fund for purchase of its units.
• Payment to a company or an institution for acquiring
debentures or bonds issued by it.

• Payment to the Reserve Bank of India, constituted under
section 3 of the Reserve Bank of India Act, 1934 (2 of
1934) for acquiring bonds issued by it.

• Deposit with,—
• banking company or a co-operative bank to which
the
Banking Regulation Act, 1949
(10 of 1949),
applies (including any bank or banking institution
referred to in
section 51
of that Act);

• Post Office.

• Purchase of bank drafts or pay orders or banker's
cheques from a banking company or a co-operative bank
to which the
Banking Regulation Act, 1949
(10 of 1949),
PART H

applies (including any bank or banking institution referred
to in
section 51
of that Act).

• A time deposit with, —
• a banking company or a co-operative bank to which
the
Banking Regulation Act, 1949
(10 of 1949),
applies (including any bank or banking institution
referred to in
section 51
of that Act);

• a Post Office;

• a Nidhi referred to in
section 406
of the Companies
Act, 2013 (18 of 2013); or
• a non-banking financial company which holds a
certificate of registration under
section 45-IA
of the
Reserve Bank of India Act, 1934 (2 of 1934), to hold
or accept deposit from public.

• Payment for one or more pre-paid payment instruments,
as defined in the policy guidelines for issuance and
operation of pre-paid payment instruments issued by
Reserve Bank of India under
section 18
of the Payment
and Settlement Systems Act, 2007 (51 of 2007), to a
banking company or a co-operative bank to which the

Banking Regulation Act, 1949
(10 of 1949), applies
(including any bank or banking institution referred to in

section 51
of that Act) or to any other company or
institution.

• Payment as life insurance premium to an insurer as
defined in clause (9) of
section 2
of the Insurance Act,
1938 (4 of 1938).

• A contract for sale or purchase of securities (other than
shares) as defined in clause (h) of
section 2
of the
Securities Contracts (Regulation) Act, 1956 (42 of 1956).
• Sale or purchase, by any person, of shares of a company
not listed in a recognised stock exchange.

• Sale or purchase of any immovable property.
• Sale or purchase, by any person, of goods or services of
any nature other than those specified above.”

The decision in Puttaswamy has recognised that protection of the interests of

the revenue constitutes a legitimate state aim in the three-pronged test of

proportionality. The circumstances which have been adverted to in the

decision in Binoy Viswam are a sufficient indicator of the legitimate concerns

of the revenue to curb tax evasion, by embarking upon a programme for de-

duplication of the Pan data base. A legitimate state aim does exist. However,
PART H

that in itself is not sufficient to uphold the validity of the law, which must meet

the other parameters of proportionality spelt out in Puttaswamy. The

explanation to
Section 139AA
adopts the definition of the expressions

‘Aadhaar number’, ‘enrolment’ and ‘resident’ from the parent Aadhaar

legislation. The seeding of Aadhaar with Pan cards must depend for its validity

on the constitutional validity of the Aadhaar legislation. Hence, besides

affirming that the object of the measure in
Section 139AA
constitutes a

legitimate state aim, the decision of this Court in regard to the validity of

Aadhaar will impact upon the seeding of PAN with Aadhaar, which
Section

139AA
seeks to achieve.

H.7 Linking of SIM cards and Aadhaar numbers

279 In
Avishek Goenka v Union of India533
, a three judge Bench of this

Court dealt with a public interest litigation seeking to highlight the non-

observance of norms, regulations and guidelines relating to subscriber

verification by Telecom Service Providers (TSPs). The Department of

Telecommunications (DoT), in the course of the proceedings, filed its

instructions stating its position in regard to the verification of prepaid and

postpaid mobile subscribers. While concluding the proceedings, this Court

directed the constitution of an expert committee comprising of representatives

of TRAI and DoT. The court mandated that the following issues should be

examined by the Committee:

533 (2012) 5 SCC 275
PART H

“(a) Whether re-verification should be undertaken by the
service provider/licensee, DoT itself or any other central
body?

(b) Is there any need for enhancing the penalty for
violating the instructions/guidelines including sale of pre-
activated SIM cards?

(c) Whether delivery of SIM cards may be made by post?
Which is the best mode of delivery of SIM cards to provide
due verification of identity and address of a subscriber?

(d) Which of the application forms i.e. the existing one or
the one now suggested by TRAI should be adopted as
universal application form for purchase of a SIM card?

(e) In absence of Unique ID card, whether updating of
subscriber details should be the burden of the licensee
personally or could it be permitted to be carried out through
an authorised representative of the licensee?

(f) In the interest of national security and the public
interest, whether the database of all registered subscribers
should be maintained by DoT or by the licensee and how
soon the same may be made accessible to the security
agencies in accordance with law?”534

In pursuance of the above directive, DoT issued instructions on the verification

of new mobile subscribers on 9 August 2012. On 6 January 2016, TRAI

addressed a communication to DoT recommending that the new procedure for

subscriber verification was “cumbersome and resource intensive” and hence

should be replaced by an Aadhaar linked e-KYC mechanism. Following this,

DoT issued a directive on 16 August 2016 to launch an Aadhaar e-KYC

service across all licenced service areas for issuance of mobile connections.

However, it was stated that the e-KYC process was an alternative, in addition

to the existing process of issuing mobile connections to subscribers and would

not be applicable for bulk, outstation and foreign customers.

534 Ibid, at page 283
PART H

280 A public interest litigation was filed before this Court under
Article 32
in

Lokniti Foundation v Union of India535
. The relief which claimed was that

there should be a definite mobile phone subscriber verification to ensure a

hundred per cent verification of subscribers. Responding to the petition, the

Union Government informed this Court that DoT had launched an Aadhaar

based e-KYC for issuing mobile connections on 16 August 2016, by which

customers as well as point of sale agents of TSPs will be authenticated by

UIDAI. A statement was made by the learned Attorney General that an

effective programme for verification of prepaid connections would be devised

within one year. In view of the statement of the AG, the petition was disposed

of by a two judge Bench in terms of the following directions:

“5. In view of the factual position brought to our notice during
the course of hearing, we are satisfied, that the prayers made
in the writ petition have been substantially dealt with, and an
effective process has been evolved to ensure identity
verification, as well as, the addresses of all mobile phone
subscribers for new subscribers. In the near future, and more
particularly, within one year from today, a similar verification
will be completed, in the case of existing subscribers. While
complimenting the petitioner for filing the instant petition, we
dispose of the same with the hope and expectation, that the
undertaking given to this Court, will be taken seriously, and
will be given effect to, as soon as possible.”536

Following the decision, DoT issued a directive on 23 March 2017 to all

licensees stating that a way forward had been found to implement the

directions of the Supreme Court. Based on the hypothesis that this Court had

directed an E-KYC verification, DoT proceeded to implement it on 23 March

2017.

535 (2017) 7 SCC 155
536 Ibid, at page 156
PART H

281 Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of

UIDAI and the State of Gujarat supported the measure. He submitted that the

licences of all TSPs are issued under
Section 4
of the Indian Telegraph Act

1885. Since the Central Government has the exclusive privilege of

establishing, maintaining and working telegraphs, TSPs, it was urged, have to

operate the telegraph under a license and the Central Government is entitled

to impose conditions on the licensee. The instruction issued by DoT on 23

March 2017 has, it is urged, the sanction of
Section 4
of the Indian Telegraph

Act 1885.

282 We must at the outset note the ambit of the proceedings before this

Court in Lokniti Foundation. In response to the public interest litigation, it

was the Union Government which relied on its decision of 16 August 2016 to

implement e-KYC verification for mobile subscribers. The petition was

disposed of since the prayers were substantially dealt with and the court

perceived that an effective process had been adopted to ensure identity

verification together with verification of addresses. Existing subscribers were

directed to be verified in a similar manner within one year. The issue as to

whether the seeding of Aadhaar with mobile SIM cards was constitutionally

valid did not fall for consideration.

283 The decision to link Aadhaar numbers with SIM cards and to require e-

KYC authentication of mobile subscribers has been looked upon by the Union
PART H

government purely as a matter of efficiency of identification. TRAI’s letter

dated 6 January 2016 states that the new procedure for subscriber verification

which it had adopted was “cumbersome and resource intensive”. The issue as

to whether Aadhaar linked e-KYC authentication would seriously compromise

the privacy of mobile subscribers did not enter into the decision making

calculus. In applying the test of proportionality, the matter has to be addressed

not just by determining as to whether a measure is efficient but whether it

meets the test of not being disproportionate or excessive to the legitimate aim

which the state seeks to pursue. TRAI and DoT do have a legitimate concern

over the existence of SIM cards obtained against identities which are not

genuine. But the real issue is whether the linking of Aadhaar cards is the least

intrusive method of obviating the problems associated with subscriber

verification. The state cannot be oblivious to the need to protect privacy and of

the dangers inherent in the utilization of the Aadhaar platform by telecom

service providers. In the absence of adequate safeguards, the biometric data

of mobile subscribers can be seriously compromised and exploited for

commercial gain. While asserting the need for proper verification, the state

cannot disregard the countervailing requirements of preserving the integrity of

biometric data and the privacy of mobile phone subscribers. Nor can we

accept the argument that cell phone data is so universal that one can become

blasé about the dangers inherent in the revealing of biometric information.
PART H

284 The submission that a direction of this nature could have been given to

TSPs under
Section 4
of the Indian Telegraph Act 1885 does not answer the

basic issue of its constitutional validity, which turns upon the proportionality of

the measure. Having due regard to the test of proportionality which has been

propounded in Puttaswamy and as elaborated in this judgment, we do not

find that the decision to link Aadhaar numbers with mobile SIM cards is valid

or constitutional. The mere existence of a legitimate state aim will not justify

the means which are adopted. Ends do not justify means, at least as a matter

of constitutional principle. For the means to be valid, they must be carefully

tailored to achieve a legitimate state aim and should not be either

disproportionate or excessive in their encroachment on individual liberties.

285 Mobile technology has become a ubiquitous feature of our age. Mobile

phones are not just instruments to facilitate a telephone conversation. They

are a storehouse of data reflecting upon personal preferences, lifestyles and

individual choices. They bear upon family life, the workplace and personal

intimacies. The conflation of biometric data with SIM cards is replete with

grave dangers to personal autonomy. A constitution based on liberal values

cannot countenance an encroachment of this nature. The decision to link

Aadhaar numbers to SIM cards and to enforce a regime of e-KYC

authentication clearly does not pass constitutional muster and must stand

invalidated. All TSPs shall be directed by the Union government and by TRAI

to forthwith delete the biometric data and Aadhaar details of all subscribers
PART I

within two weeks. The above data and Aadhaar details shall not be used or

purveyed by any TSP or any other person or agency on their behalf for any

purpose whatsoever.

I Money laundering rules

286 Parliament enacted a law on money-laundering as part of a concerted

effort by the international community to deal with activities which constitute a

threat to financial systems and to the integrity and sovereignty of nations. The

Statement of Objects and Reasons accompanying the introduction of the Bill

contains an elucidation of the reasons for the enactment:

“Introduction
Money-laundering poses a serious threat not only to the
financial systems of countries, but also to their integrity and
sovereignty. To obviate such threats international community
has taken some initiatives. It has been felt that to prevent
money-laundering and connected activities a comprehensive
legislation is urgently needed. To achieve this objective the
Prevention of Money-laundering Bill, 1998 was introduced in
the Parliament. The Bill was referred to the Standing
Committee on Finance, which presented its report on 4th
March 1999 to the Lok Sabha. The Central Government
broadly accepted the recommendation of the Standing
Committee and incorporated them in the said Bill along with
some other desired changes.

Statement of Objects and Reasons
It is being realized, world over, that money-laundering poses
a serious threat not only to the financial systems of countries,
but also to their integrity and sovereignty. Some of the
initiatives taken by the international community to obviate
such threat are outlined below:-

(a) the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, to which
India is a party, calls for prevention of laundering of
proceeds of drug crimes and other connected activities
and confiscation of proceeds derived from such offence.

(b) the Basle Statement of Principles, enunciated in 1989,
outlined basic policies and procedures that banks should
PART I

follow in order to assist the law enforcement agencies in
tackling the problem of money laundering.

(c) the Financial Action Task Force established at the summit
of seven major industrial nations, held in Paris from 14th
to 16th July 1989, to examine the problem of money-

laundering has made forty recommendations, which
provide the foundation material for comprehensive
legislation to combat the problem of money-laundering.
The recommendations were classified under various
heads. Some of the important heads are-

(i) declaration of laundering of monies carried through
serious crimes a criminal offence;

(ii) to work out modalities of disclosure by financial
institutions regarding reportable transactions;

(iii) confiscation of the proceeds of crime;

(iv) declaring money-laundering to be an extraditable
offence; and

(v) promoting international co-operation in
investigation of money-laundering.

(d) the Political Declaration and Global Programme of Action
adopted by United Nations General Assembly by its
Resolution No. S-17/2 of 23rd February 1990, inter alia,
calls upon the member States to develop mechanism to
prevent financial institutions from being used for
laundering of drug related money and enactment of
legislation to prevent such laundering.

(e) the United Nations in the Special Session on countering
World Drug Problem Together concluded on the 8th to the
10th June 1998 has made another declaration regarding
the need to combat money-laundering. India is a
signatory to this declaration.”

287 The expressions “beneficial owner, reporting entity and intermediary”

are defined respectively in clauses (fa), (wa) and (n) of the Act thus:

“(fa) “beneficial owner” means an individual who ultimately
owns or controls a client of a reporting entity or the person on
whose behalf a transaction is being conducted and includes a
person who exercises ultimate effective control over a
juridical person.

(wa) “reporting entity” means a banking company, financial
institution, intermediary or a person carrying on a designated
business or profession.

(n) “intermediary” means,-

(i) a stock-broker, sub-broker share transfer agent, banker
to an issue, trustee to a trust deed, registrar to an issue,
PART I

merchant banker, underwriter, portfolio manager,
investment adviser or any other intermediary associated
with securities market and registered under section 12 of
the Securities and Exchange Board of India Act, 1992 (15
of 1992); or

(ii) an association recognised or registered under the
Forward Contracts (Regulation) Act, 1952 (74 of 1952) or
any member of such association; or

(iii) intermediary registered by the Pension Fund
Regulatory and Development Authority; or

(iv) a recognised stock exchange referred to in clause (f) of

section 2
of the Securities Contracts (Regulation) Act,
1956 (42 of 1956).”

The Prevention of Money-Laundering (Maintenance of Records) Rules 2005

were amended by the Prevention of Money-Laundering (Maintenance of

Records) Second Amendment Rules 2017. By the amendment, several

definitions were introduced with reference to the provisions of the Aadhaar

Act. These are:

“‘(aaa) “Aadhaar number” means an identification number as
defined under sub-section (a) of
section 2
of the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016;

(aab) “authentication” means the process as defined under
sub-section (c) of
section 2
of the Aadhaar (Targeted Delivery
of Financial and Other Subsidies, Benefits and Services) Act,
2016;

(aac) “Resident” means an individual as defined under sub-

section (v) of
section 2
of the Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act,
2016;

(aad) “identity information” means the information as defined
in sub-section (n) of
section 2
of the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016;

(aae) “e – KYC authentication facility” means an
authentication facility as defined in Aadhaar (Authentication)
Regulations, 2016;

(aaf) “Yes/No authentication facility” means an authentication
facility as defined in Aadhaar (Authentication) Regulations,
2016…”
PART I

Similarly, the expression “officially valid document” was amended to read as

follows:

“(d) “officially valid document” means the passport, the
driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number or any other document as
notified by the Central Government in consultation with
the [Regulator]:

[Provided that where simplified measures are applied for
verifying the identity of the clients the following documents
shall be deemed to be officially valid documents:-

(a) identity card with applicant’s Photograph issued by the
Central/State Government Departments, Statutory/
Regulatory Authorities, Public Sector Undertakings,
Scheduled Commercial Banks and Public Financial
Institutions;

(b) letter issued by a gazette officer, with a duly attested
photograph of the person].”

288 Rule 9 of the 2005 Rules requires every reporting entity to carry out

client due diligence at the time of the commencement of an account-based

relationship. Due diligence requires a verification of the identity of the client

and a determination of whether the client is acting on behalf of a beneficial

owner, who then has to be identified. Rule 9(3) defines the expression

“beneficial owner” for the purpose of sub-rule 1. Rule 9(4) requires an

individual client to submit an Aadhaar number. Rule 9(3) and Rule 9(4) are

extracted below:

“9. Client Due Diligence.—(1) Every reporting entity shall—
xxxxx
xxxxx
(3) The beneficial owner for the purpose of sub-rule (1) shall
be determined as under—

(a) where the client is a company, the beneficial owner is
the natural person(s), who, whether acting alone or
PART I

together, or through one or more juridical person, has a
controlling ownership interest or who exercises control
through other means.

Explanation.—For the purpose of this sub-clause-

1. "Controlling ownership interest" means ownership
of or entitlement to more than twenty-five per cent. of
shares or capital or profits of the company;

2. "Control" shall include the right to appoint majority
of the directors or to control the management or
policy decisions including by virtue of their shareholding
or management rights or shareholders agreements or
voting agreements;

(b) where the client is a partnership firm, the beneficial
owner is the natural person(s) who, whether acting alone or \
together, or through one or more juridical person, has I
ownership of/ entitlement to more than fifteen per cent. of
capital or profits of the partnership;

(c) where the client is an unincorporated association or
body of individuals, the beneficial owner is the natural
person(s), who, whether acting alone or together, or through
one or more juridical person, has ownership of or entitlement
to more than fifteen per cent. of the property or capital or
profits of such association or body of individuals;

(d) where no natural person is identified under (a) or (b) or (c)
above, the beneficial owner is the relevant natural person
who holds the position of senior managing official;

(e) where the client is a trust, the identification of beneficial
owner(s) shall include identification of the author of the trust,
the trustee, the beneficiaries with fifteen per cent. or more
interest in the trust and any other natural person exercising
ultimate effective control over the trust through a chain of
control or ownership; and

(f) where the client or the owner of the controlling interest
is a company listed on a stock exchange, or is a subsidiary
of such a company, it is not necessary to identify and verify
the identity of any shareholder or beneficial owner of such
companies.

(4) Where the client is an individual, who is eligible to be
enrolled for an Aadhaar number, he shall for the purpose of
sub-rule (1) submit to the reporting entity, -

(a) the Aadhaar number issued by the Unique
Identification Authority of India; and

(b) the Permanent Account Number or Form No. 60 as
defined in Income-tax Rules, 1962, and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:

Provided that where an Aadhaar number has not been
assigned to a client, the client shall furnish proof of
application of enrolment for Aadhaar and in case the
PART I

Permanent Account Number is not submitted, one certified
copy of an 'officially valid document' shall be submitted.
Provided further that photograph need not be submitted by a
client falling under clause (b) of sub-rule (1).”
(Emphasis supplied)

Sub-rule 15 of Rule 9 requires the reporting entity to carry out authentication

at the time of receipt of the Aadhaar number:

“(15) Any reporting entity, at the time of receipt of the
Aadhaar number under provisions of this rule, shall carry out
authentication using either e-KYC authentication facility or
Yes/No authentication facility provided by Unique
Identification Authority of India.”

Sub-rule 17 allows a period of six months for a client who is eligible to be

enrolled for Aadhaar and to obtain a PAN to submit it upon the

commencement of the account-based relationship. Failure to do so, would

result in the account ceasing to be operational until the Aadhaar number and

PAN are submitted. Clauses a and c of sub-rule 17 provide as follows :

“(17) (a) In case the client, eligible to be enrolled for Aadhaar
and obtain a Permanent Account Number, referred to in sub-
rules (4) to (9) of rule 9 does not submit the Aadhaar number
or the Permanent Account Number at the time of
commencement of an account based relationship with a
reporting entity, the client shall submit the same within a
period of six months from the date of the commencement of
the account based relationship:

Provided that the clients, eligible to be enrolled for Aadhaar
and obtain the Permanent Account Number, already having
an account based relationship with reporting entities prior to
date of this notification, the client shall submit the Aadhaar
number and Permanent Account Number by 31st December,
2017.

(c) In case the client fails to submit the Aadhaar number and
Permanent Account Number within the aforesaid six months
period, the said account shall cease to be operational till the
time the Aadhaar number and Permanent Account Number is
submitted by the client:
PART I

Provided that in case client already having an account based
relationship with reporting entities prior to date of this
notification fails to submit the Aadhaar number and
Permanent Account Number by 31st December, 2017, the
said account shall cease to be operational till the time the
Aadhaar number and Permanent Account Number is
submitted by the client.”

289 The statutory mandate for the framing these rules is contained in

Sections 12
,
and
of the PMLA. Insofar as is material,
Section 12

provides as follows:

“12. Reporting entity to maintain records:-
(1) Every reporting entity shall-

(a) maintain a record of all transactions, including
information relating to transactions covered under
clause (b), in such manner as to enable it to
reconstruct individual transactions;

(b) furnish to the Director within such time as may be
prescribed, information relating to such transactions,
whether attempted or executed, the nature and value
of which may be prescribed;

(c) verify the identity of its clients in such manner and
subject to such conditions, as may be prescribed;

(d) identify the beneficial owner, if any, of such of its
clients, as may be prescribed;

(e) maintain record of documents evidencing identity
of its clients and beneficial owners as well as
account files and business correspondence
relating to its clients.

(2) Every information maintained, furnished or verified, save
as otherwise provided under any law for the time being in
force, shall be kept confidential.

(3) The records referred to in clause (a) of sub-section (1)
shall be maintained for a period of five years from the date
of transaction between a client and the reporting entity.
(4) The records referred to in clause (e) of sub-section (1)
shall be maintained for a period of five years after the
business relationship between a client and the reporting
entity has ended or the account has been close, whichever
is later.

(5) The Central Government may, by notification, exempt any
reporting entity or class of reporting entities from any
obligation under this Chapter.”
(Emphasis supplied)
PART I

Section 12
imposes a statutory obligation on reporting entities to maintain

records and to verify the identity of their clients and beneficial owners in the

manner prescribed. The procedure for and manner in which information is

furnished by reporting entities is specified under sub-
section 1
of
Section 12

by the Central Government in consultation with the Reserve Bank of India.

Section 15
provides as follows:

“15. Procedure and manner of furnishing information by
reporting entities:-

The Central Government may, in consultation with the
Reserve Bank of India, prescribe the procedure and the
manner of maintaining and furnishing information by a
reporting entity under sub-section (1) of
Section 12
for the
purpose of implementing the provisions of this Act.”
(Emphasis supplied)

The rule making power is referable to the provisions of
Section 73
, which

insofar as is material, provides as follows:

“73. Power to make rules-

(1) The Central Government may, by notification, make rules
for carrying out the provisos of this Act.

(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of
the following matters, namely-

(j) the manner and the conditions in which identity of
clients shall be verified by the reporting entities under
clause (c) of sub-section (1) of
Section 12
;
(jj) the manner of identifying beneficial owner, if any, from
the clients by the reporting entities under clause (d) of
sub-section (1) of
Section 12
;

(k) the procedure and the manner of maintaining and
furnishing information under sub-section (1) of
Section
as required under
Section 15
;

(x) any other matter which is required to be, or may be,
prescribed.”

Section 12(1)(c)
requires the reporting entity to verify the identity of its clients

“in such manner and subject to such conditions” as may be prescribed. The
PART I

provisions of the rules, including sub-rule 17(c) of Rule 9 have been

challenged on the ground that they suffer from the vice of excessive

delegation.

290 In
Bombay Dyeing and Mfg v Bombay Environmental Action

Group537
, this Court has re-affirmed the well-settled legal test which

determines the validity of delegated legislation. The court held:

“104…By reason of any legislation, whether enacted by the
legislature or by way of subordinate legislation, the State
gives effect to its legislative policy. Such legislation, however,
must not be ultra vires the Constitution. A subordinate
legislation apart from being intra vires the Constitution, should
not also be ultra vires the parent Act under which it has been
made. A subordinate legislation, it is trite, must be reasonable
and in consonance with the legislative policy as also give
effect to the purport and object of the Act and in good faith.”

The essential legislative function consists in the determination of legislative

policy and of formally enacting it into a binding rule of conduct. Once this is

carried out by the legislature, ancillary or subordinate functions can be

delegated. Having laid down legislative policy, the legislation may confer

discretion on the executive to work out the details in the exercise of the rule

making power, though, in a manner consistent with the plenary enactment (
J

K Industries Ltd v Union of India538
).

291 The Reserve Bank of India had issued a Master Circular dated 25

February 2016 in exercise of its statutory powers under
Section 35A
of the
537 (2006) 3 SCC 434
538 (2007) 13 SCC 673
PART I

Banking Regulation Act
1949 (read with
Section 56
) and Rule 9(14) of the

Prevention of Money-Laundering (Maintenance of Records) Rules 2005.

Following the amendment of the PMLA Rules, the Master Circular of the

Reserve Bank has been updated on 20 April 2018.

The basic issue which needs to be addressed is whether the amendments

which were brought about to the PMLA Rules in 2017 meet the test of

proportionality.

292 In 2005, the Central Government in consultation with the Reserve Bank

of India notified the Prevention of Money-Laundering (Maintenance of

Records) Rules 2005 under
Section 73
of the parent Act. The expression

‘officially valid document’ was defined in Rule 2(d) in the following terms :

“(d) “officially valid document” means the passport, the driving
licence, the Permanent Account Number (PAN) Card, the
Voter’s Identity Card issued by539 [Election Commission of
India, job card issued by NREGA duly signed by an officer of
the State Government, the letter issued by the Unique
Identification Authority of India540 [or the National Population
Register] containing details of name, address and Aadhaar
number or any other document as notified by the Central
Government in consultation with the [Regulator];”

Rule 9(4) required the submission to the reporting entity, where the client is an

individual, a certified copy of an officially valid document containing details of

identity and address. Rule 9(4) read as follows :

“(4) Where the client is an individual, he shall for the purpose
of sub-rule (1), submit to the reporting entity, one certified

539 Substituted by G.S.R. 980(E), dated 16-12-2010 (w.e.f. 16-12-2010)
540 Inserted by G.S.R. 544(E)
PART I

copy of an “officially valid document” containing details of his
identity and address, one recent photograph and such other
documents including in respect of the nature of business and
financial status of the client as may be required by the
reporting entity:”

Under Rule 9(14), the regulator was empowered to issue guidelines, in terms

of the provisions of the rule, and to prescribe enhanced or simplified measures

to verify the identity of a client, taking into consideration the type of client,

business relationship, and the nature and value of transactions based on the

overall money-laundering and terrorist financing risks involved. Under the

above rules there were six ‘officially valid documents’ : the passport, driving

licence, Permanent Account Number (PAN) Card, NREGA job card, Voter’s

Identity Card and a letter of UIDAI containing details of name, address and

details of Aadhaar number. or any other document notified by the Central

Government in consultation with the Regulator.

293 In the Master Circular issued by the Reserve Bank of India on 25

February 2016, a provision was made for the submission by customers, at

their option, of one of the six officially valid documents (OVDs) for proof of

identity and address. Rule 3(vi) defined the expression ‘officially valid

document’ in similar terms:

“(vi) “officially valid document” means the passport, the
driving licence, the Permanent Account Number (PAN) Card,
the Voter’s Identity Card issued by the Election Commission
of India, job card issued by NREGA duly signed by an officer
of the State Government, letter issued by the Unique
Identification Authority of India containing details of name,
address and Aadhaar number.
PART I

Explanation: Customers, at their option, shall submit one of
the six OVDs for proof of identity and proof of address.”

Customer due diligence and on-going due diligence were defined thus:

“Customer Due Diligence (CDD)” means indemnifying and
verifying the customer and the beneficial owner using
‘Officially Valid Documents’ as a ‘proof of identity’ and a ‘proof
of address’.

“On-going Due Diligence” means regular monitoring of
transactions in accounts to ensure that they are consistent
with the customers’ profile and source of funds.”

294 Chapter III of the Master Circular provided for regulated entities

(including banks) to specify a customer acceptance policy. Clause 15 of the

Master Circular inter alia specified that customers shall not be required to

furnish additional OVDs if the OVD already submitted, contained both proof of

identity and address. Chapter VI which provided for a due diligence procedure

allowed customers to submit one of the six OVDs for proof of identity and

address. Under Part V of Chapter VI, banks were required to conduct on-

going due diligence particularly in regard to large and complex transactions

above a threshold. Clause 39 of the Circular provided for a partial freezing and

closure of accounts:

“39. Partial freezing and closure of accounts

(a) Where REs are unable to comply with the CDD
requirements mentioned at Part I to V above, they shall
not open accounts, commence business relations or
perform transactions. In case of existing business
relationship which is not KYC compliant, banks shall
ordinarily take step to terminate the existing business
relationship after giving due notice.

(b) As an exception to the Rule, banks shall have an option
to choose not to terminate business relationship straight
away and instead opt for a phased closure of operations
in this account as explained below:
PART I

i. The option of ‘partial freezing’ shall be exercise
after giving due notice of three months to the
customers to comply with KYC requirements.
ii. A reminder giving a further period of three months
shall also be given.

iii. Thereafter, ‘partial freezing’ shall be imposed by
allowing credits and disallowing all debits with the
freedom to close the accounts in case of the
account being KYC non-compliant after six
months of issue first notice.

iv. All debits and credits from/to the accounts shall be
disallowed, in case of the account being KYC non-
compliant after six months of imposing ‘partial
freezing’,
v. The account holders shall have the option, to
revive their accounts by submitting the KYC
documents.

(c) When an account is closed whether without ‘partial
freezing’ or after ‘partial freezing’, the reason for that shall
be communicated to account holder.”

Chapter VIII provided for reporting requirements to the Financial Intelligence

Unit. Chapter IX dealt with compliance with requirements/obligations under

international agreements. Clause 58 of Chapter X stipulated reporting

requirements under the Foreign Account Tax Compliance Act (FATCA) and

Common Reporting Standards (CRS).

295 As a result of the amendment to the Rules brought about in 2017, Rule

9(4) mandates that in the case of a client who is an individual, who is eligible

to be enrolled for an Aadhaar number, submission of the Aadhaar number is

mandatory. Instead of furnishing an option to submit one of six OVDs,

submission of Aadhaar number alone is mandated. Where an Aadhaar

number has not been assigned, proof of an application for enrolment is

required to be submitted. Under Rule 9(15), the reporting entity at the time of
PART I

receipt of an Aadhaar number is under an obligation to carry out

authentication using either the e-KYC authentication facility or the yes/no

authentication provided by UIDAI. If a client who is eligible to be enrolled for

Aadhaar and to obtain a PAN card does not submit its details while

commencing an account based relationship, there is a period of six months

reserved for submission. Those who already have accounts are required to

submit their Aadhaar numbers by a stipulated date. Failure to do so, renders

the account subject to the consequence that it shall cease to be operational

until compliance is effected.

Following the amendments to the rules, the Reserve Bank has updated its

Master Circular on 20 April 2018 to bring it into conformity with the amended

rules.

296 In deciding whether the amendment brought about in 2017 to the rules

is valid, it is necessary to bear in mind what has already been set out earlier

on the aspect of proportionality. Does the requirement of the submission or

linking of an Aadhaar number to every account- based relationship satisfy the

test of proportionality?

The state has a legitimate aim in preventing money-laundering. In fact, it is

with a view to curb and deal with money-laundering that the original version of

the Master Circular as well as its updated version impose conditions for initial
PART I

and on-going due diligence. The Reserve Bank has introduced several

reporting requirements including those required to comply with FATCA norms.

The existence of a legitimate state aim satisfies only one element of

proportionality. In its submissions, the Union government has dealt only with

legitimate aim, leaving the other elements of proportionality unanswered.

Requiring every client in an account based relationship to link the Aadhaar

number with a bank account and to impose an authentication requirement, is

excessive to the aim and object of the state. There can be no presumption

that all existing account holders as well as every individual who seeks to open

an account in future is a likely money-launderer. The type of client, the nature

of the business relationship, the nature and value of the transactions and the

terrorism and laundering risks involved may furnish a basis for distinguishing

between cases and clients. The rules also fail to make a distinction between

opening an account and operating an account. If an account has been opened

in the past, it would be on the basis of an established identity. The

consequences of the non-submission of an Aadhaar number are draconian.

Non-submission within the stipulated period will result in a consequence of the

account ceasing to be operational. A perfectly genuine customer who is

involved in no wrongdoing would be deprived of the use of the moneys and

investments reflected in the account, in violation of
Article 300A
of the

Constitution purely on an assumption that he or she has indulged in money-

laundering. The classification is over-inclusive: a uniform requirement of such

a nature cannot be imposed on every account based relationship irrespective
PART I

of the risks involved to the financial system. The account of a pensioner or of

a salaried wage earner cannot be termed with the same brush as a high net-

worth individual with cross-border inflows and outflows. Treating every

account holder with a highly intrusive norm suffers from manifest arbitrariness.

Moreover, there is no specific provision in the Act warranting a consequence

of an account holder being deprived of the moneys standing in the account,

even if for a temporary period.
Section 12(1)(c)
empowers a reporting entity

to verify the entity or its client in such a manner and “subject to such

conditions” as may be prescribed. This does not envisage a consequence of

an account ceasing to be operational. Blocking an account is a deprivation of

property under
Article 300A.
The Union Government has been unable to

discharge the burden of establishing that this was the least intrusive means of

achieving its aim to prevent money-laundering or that its object would have

been defeated if it were not to impose the requirement of a compulsory linking

of Aadhaar numbers with all account based relationships with the reporting

entity. Money-laundering is indeed a serious matter and the Union

Government is entitled to take necessary steps including by classifying

transactions and sources which give rise to reasonable grounds for suspecting

a violation of law. But, to impose a uniform requirement of linking Aadhaar

numbers with all account based relationships is clearly disproportionate and

excessive. It fails to meet the test of proportionality and suffers from manifest

arbitrariness. While we have come to the above conclusion, we clarify that this

would not preclude the Union Government in the exercise of its rule making
PART J

power and the Reserve Bank of India as the regulator to re-design the

requirements in a manner that would ensure due fulfillment of the object of

preventing money-laundering, subject to compliance with the principles of

proportionality as outlined in this judgment.

J Savings in
Section 59
Section 59 of the Aadhaar Act provides:

“Anything done or any action taken by the Central
Government under the Resolution of the Government of India,
Planning Commission bearing notification number A-
43011/02/2009-Admin. I, dated the 28th January, 2009, or by
the Department of Electronics and Information Technology
under the Cabinet Secretariat Notification bearing notification
number S.O. 2492(E), dated the 12th September, 2015, as
the case may be, shall be deemed to have been validly done
or taken under this Act.”

298 The petitioners have submitted that all acts done pursuant to the

Notifications dated 28 January 2009 and 12 September 2015, under which the

Aadhaar programme was created and implemented, violate fundamental

rights and were not supported by the authority of law. It has been submitted

that the collection, storage and use of personal data by the State and private

entities, which was done in a legislative vacuum as the State failed to enact

the Aadhaar Act for six years, is now being sought to be validated by Section

59. It has been contended that since the acts done prior to the enactment of

the Aadhaar Act are in breach of fundamental rights,
Section 59
is invalid.

Moreover,
Section 59
does not operate to validate the collection of biometric

data prior to the enforcement of the Aadhaar Act.
PART J

It has been submitted that a validating law must remove the cause of invalidity

of previous acts: it would not be effective if it simply deems a legal

consequence without amending the law from which the consequence could

follow. In the present case, it has been contended,
Section 59
does not create

a legal fiction where the Aadhaar Act is deemed to have been in existence

since 2009 and that it only declares a legal consequence of the acts done by

the Union since 2009.

It has also been submitted that
Section 59
is invalid and unconstitutional

inasmuch as for Aadhaar enrolments done before 2016, there was neither

informed consent nor were any procedural guarantees and safeguards

provided under a legal framework.
Section 59
, it is contended, cannot cure the

absence of consent and other procedural safeguards, provided under the

Aadhaar Act, to the enrolments done prior to the enactment of the Act.

299 The respondents have submitted that
Section 59
protects the actions

taken by the Central government. It does not contemplate the maintenance of

any data base, containing identity information, by the State governments. The

State governments, it is urged, have destroyed the biometric data collected

during Aadhaar enrolments before the Act came into force, from their server.

It has been contended that
Section 59
is retrospective in nature as it states

that it shall operate from an earlier date.
PART J

The Respondents have relied upon the judgments of this Court in West

Ramnad Electric Distribution Co. Ltd. v State of Madras541 (“West

Ramnad”),
State of Mysore v D. Achiah Chetty
, Etc542 (“Chetty”), and Hari

Singh v Military Estate Officer543 (“Hari Singh”) to contend that the

legislature can, by retrospective operation, cure the invalidity of actions taken

under a law which is void for violating fundamental rights.

It has also been contended that before the advent of the Aadhaar Act, no

individual has been enrolled under compulsion, and since all enrolments were

voluntary, they cannot be considered to be in breach of
Article 21
or any other

fundamental right. It is further submitted that non-adjudication of the issue of

whether collection of identity information violates the right to privacy, does not

prevent the Parliament from enacting a validating clause.

Reliance has also

been placed on
State of Karnataka v State of Tamil Nadu544
to submit that

Section 59
creates a deemed fiction as a result of which one has to imagine

that all actions taken under the notifications were taken under the Act.
Section 7
provides that the Central Government or the State

Governments may require proof of an Aadhaar number as a necessary

condition for availing a subsidy, benefit or service for which the expenditure is

incurred from the Consolidated Fund of India.
Section 3
provides that the

Aadhaar number shall consist of demographic and biometric information of an
541 (1963) 2 SCR 747
542 (1969) 1 SCC 248
543 (1972) 2 SCC 239
544 (2017) 3 SCC 362
PART J

individual. “Biometric information”, under
Section 2(g)
, means a photograph,

finger print, Iris scan, or such other biological attributes of an individual as

may be specified by regulations.
Section 4(3)
provides that an Aadhaar

number may be used as a proof of identity “for any purpose”.
Section 57

authorizes a body corporate or person to use the Aadhaar number for

establishing the identity of an individual “for any purpose”. The proviso to

Section 57
provides that the use of an Aadhaar number under the Section

shall be subject to the procedure and obligations under
Section 8
and
Chapter

VI of the Act
.
Section 8
sets out the procedure for authentication. It states that

for authentication, a requesting entity shall obtain the consent of an individual

before collecting identity information and shall ensure that the identity

information is only used for submission to the Central Identities Data

Repository for authentication. It does not envisage collection of identity

information for any other purpose.
Chapter VI of the Act
, which deals with

protection of information, provides for security and confidentiality of identity

information collected under the Act, imposes restrictions on sharing that

information and classifies biometrics as sensitive personal information.

301 The scheme of the Aadhaar Act creates a system of identification

through authentication of biometric information and authorises the Central and

State governments to assign the task of collecting individual biometric

information for the purpose of generation of Aadhaar numbers to private

entities.
The Act
authorises the use of Aadhaar numbers by the Central
PART J

government, state governments and the private entities for establishing the

identity of a resident for any purpose.
The Act
also contains certain

safeguards regarding storage and use of biometric information. The actions

taken before the enactment of the Aadhaar Act have to be tested upon the

touchstone of the legal framework provided under the Act.
Section 59
is a validating provision. It seeks to validate all the actions of

the Central Government prior to the Aadhaar Act, which were done under the

notifications of 28 January 2009 and 12 September 2015.
Section 59
does not

validate actions of the state governments or of private entities. Acts

undertaken by the State governments and by private entities are not saved by

Section 59
.

303 The Planning Commission’s notification dated 28 January 2009 created

UIDAI, while giving it the responsibility of laying down a plan and policies to

implement a unique identity (UID) scheme. UIDAI was only authorized to own

and operate the UID database, with a further responsibility for the updation

and maintenance of the database on an ongoing basis. Significantly, the 2009

notification did not contain any reference to the use of biometrics for the

purpose of the generation of Aadhaar numbers. The notification gave no

authority to collect biometrics. Biometrics, finger prints or iris scans were not

within its purview. There was no mention of the safeguards and measures

relating to the persons or entities who would collect biometric data, how the
PART J

data would be collected and how it would be used. The website of the Press

Information Bureau of the Government of India states that, by the time

Aadhaar Act was notified by the Central government, UIDAI had generated

about 100 crore Aadhaar numbers.545 The collection of biometrics from

individuals prior to the enactment of the Aadhaar Act does not fall within the

scope of the 2009 notification. Having failed to specify finger prints and iris

scans in the notification, the validating provision does not extend to the

collection of biometric data before the Act. The 2009 notification did not

provide authority to any government department or to any entity to collect

biometrics. Since the collection of biometrics was not authorised by the 2009

notification, Section 59 of the Aadhaar Act does not validate these actions.

304 The collection of the biometrics of individuals impacts their privacy and

dignity.
Informed consent is crucial to the validity of a state mandated

measure to collect biometric data. Encroachment on a fundamental right

requires the enacting of a valid law by the legislature.546 The law will be valid

only if it meets the requirements of permissible restrictions relating to each of

the fundamental rights on which there is an encroachment. Privacy animates

Part III of the Constitution.547 The invasion of any right flowing from privacy

places a heavy onus upon the State to justify its actions. Nine judges of this

545Press Information Bureau, UIDAI generates a billion (100 crore) Aadhaars A Historic Moment for India,
available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=138555
546A Constitution Bench of this Court in
State of Madhya Pradesh v. Thakur Bharat Singh
(AIR 1967 SC 1170)

held: “All executive action which operates to the prejudice of any person must have the authority of law to
support it… Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any
person, be supported by some legislative authority.”
547Puttaswamy, at para 272
PART J

Court in Puttaswamy categorically held that there must be a valid law in

existence to encroach upon the right to privacy. An executive notification does

not satisfy the requirement of a valid law contemplated in Puttaswamy. A

valid law, in this case, would mean a law enacted by Parliament, which is just,

fair and reasonable. Any encroachment upon the fundamental right to privacy

cannot be sustained by an executive notification.

There is also no merit in the submission of the Respondents that prior to the

enactment of the Aadhaar Act, no individual has been enrolled under

compulsion, and since all enrolments were voluntary, these cannot be

considered to be in breach of
Article 21
or any other fundamental right. The

format of the first two enrolment forms used by UIDAI, under which around 90

crore enrolments were done, had no mention of informed consent or the use

of biometrics. Hence, this submission is rejected.

Apart from the existence of a valid law which authorises an invasion of

privacy, Puttaswamy requires that the law must have adequate safeguards

for the collection and storage of personal data. Data protection, which is

intrinsic to privacy, seeks to protect the autonomy of the individual. The

judgment noted the centrality of consent in a data protection regime. The

Aadhaar Act provides certain safeguards in
Section 3(2)
and
Section 8(3)
for

the purposes of ensuring informed consent, and in terms of
Section 29
read

with Chapter VII in the form of penalties. The safeguards provided under the
PART J

Act
were not in existence before the enactment of the Act. The collection of

biometrics after the 2009 notification and prior to the Aadhaar Act suffers from

the absence of adequate safeguards. While a legislature has the power to

legislate retrospectively, it cannot retrospectively create a deeming fiction

about the existence of safeguards in the past to justify an encroachment on a

fundamental right. At the time when the enrolments took place prior to the

enactment of the Aadhaar Act in September 2016, there was an absence of

adequate safeguards.
Section 59
cannot by a deeming fiction, as it were,

extend the safeguards provided under the Act to the enrolments done earlier.

This will be impermissible simply because the informed consent of those

individuals, whose Aadhaar numbers were generated in that period cannot be

retrospectively legislated by an assumption of law. Moreover, it is a principle

of criminal law that it cannot be applied retrospectively to acts which were not

offences at the time when they took place.
Article 20(1)
of the Constitution

provides that “No person shall be convicted of any offence except for violation

of the law in force at the time of the commission of the act charged as an

offence”. The application of the criminal provisions of the Act, provided under

Chapter VII of the Act
which deals with “Offences and Penalties”, cannot be

extended to the period prior to the enactment of the Aadhaar Act.

305 The Respondents submit that the collection of biometrics prior to the

Aadhaar Act was adequately safeguarded by the provisions of the Information
PART J

Technology Act
2000; specifically those provisions, which were inserted or

amended by the
Information Technology (Amendment) Act, 2008
.

Section 43A
of the Act provides for compensation for failure to protect data:

“Where a body corporate, possessing, dealing or handling
any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in
implementing and maintaining reasonable security practices
and procedures and thereby causes wrongful loss or wrongful
gain to any person, such body corporate shall be liable to pay
damages by way of compensation to the person so affected.

Explanation: For the purposes of this section,-

(i) “body corporate” means any company and includes a firm,
sole proprietorship or other association of individuals
engaged in commercial or professional activities;

(ii) “reasonable security practices and procedures” means
security practices and procedures designed to protect such
information from unauthorised access, damage, use,
modification, disclosure or impairment, as may be specified in
an agreement between the parties or as may be specified in
any law for the time being in force and in the absence of such
agreement or any law, such reasonable security practices
and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or
associations as it may deem fit.

(iii) “sensitive personal data or information” means such
personal information as may be prescribed by the Central
Government in consultation with such professional
bodies or associations as it may deem fit.”
(Emphasis supplied)

306 Rule 3 of the Information Technology (Reasonable Security Practices

and Procedures and Sensitive Personal Data or Information) Rules, 2011

made by the Central government under
Section 43A
, defines “sensitive

personal data or information”:

“Sensitive personal data or information of a person means
such personal information which consists of information
relating to;—

(i) password;
PART J

(ii) financial information such as Bank account or credit
card or debit card or other payment instrument details ;

(iii) physical, physiological and mental health condition;

(iv) sexual orientation;
(v) medical records and history;
(vi) Biometric information;

(vii) any detail relating to the above clauses as provided to
body corporate for providing service; and

(viii) any of the information received under above clauses
by body corporate for processing, stored or processed under
lawful contract or otherwise.

Provided that, any information that is freely available or
accessible in public domain or furnished under the
Right to
Information Act, 2005
or any other law for the time being in
force shall not be regarded as sensitive personal data or
information for the purposes of these rules.”

Section 66C provides a punishment for identity theft:

“66C. Punishment for identity theft.-

Whoever, fraudulently548 or dishonestly549 make use of the
electronic signature, password or any other unique
identification feature of any other person, shall be punished
with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine which
may extend to rupees one lakh.” (Emphasis supplied)

Section 66E provides for punishment for the violation of the privacy of an

individual:

“Whoever, intentionally or knowingly captures, publishes or
transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy
of that person, shall be punished with imprisonment which
may extend to three years or with fine not exceeding two lakh
rupees, or with both.”

The explanation to the Section provides that “transmit” means to electronically

send a visual image with the intent that it be viewed by a person or persons.

548Section 25,
Indian Penal Code
states: ““Fraudulently”.—A person is said to do a thing fraudulently if he does
that thing with intent to defraud but not otherwise”
549Section 24,
Indian Penal Code
states: ““Dishonestly”- Whoever does anything with the intention of causing

wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”
PART J

“Capture”, with respect to an image, has been defined to mean videotaping,

photographing, filming or recording by any means. “Private area” means the

“naked or undergarment clad genitals, pubic area, buttocks or female breast.”

“Publishes” has been defined as reproduction in the printed or electronic form

and making it available for public.

Section 72A
provides for punishment for disclosure of information in breach of

a lawful contract:

“Save as otherwise provided in this Act or any other law for
the time being in force, any person including an intermediary
who, while providing services under the terms of lawful
contract, has secured access to any material containing
personal information about another person, with the intent to
cause or knowing that he is likely to cause wrongful loss or
wrongful gain discloses, without the consent of the person
concerned, or in breach of a lawful contract, such material to
any other person shall be punished with imprisonment for a
term which may extend to three years, or with a fine which
may extend to five lakh rupees, or with both.” (Emphasis
supplied)

Section 43A
applies only to bodies corporate and has no application to

government or to its departments. Explanation (i) defines body corporate to

mean any company and to include a firm, sole proprietorship or other

association of individuals engaged in professional or commercial activities.

Personal information leaked or lost by government agencies will not be

covered under
Section 43A
. The scope of Section 66E is limited. It only deals

with the privacy of the “private area” of any person. It does not deal with

informational privacy. The scope of
Section 72A
is also limited. It only

penalises acts of disclosing personal information about a person obtained
PART J

while providing services under a lawful contract. Section 66C deals with

identity theft and punishes the dishonest or fraudulent use of the unique

identification feature of a person.
The Information Technology Act
also does

not penalise unauthorised access to the Central Identities Data Repository.

Many of the safeguards which were introduced by the Aadhaar Act were not

comprehended in the provisions of the
Information Technology Act
. Indeed, it

was the absence of those safeguards in the
Information Technology Act
which

required their introduction in the Aadhaar Act. Hence, the Attorney General is

not correct in submitting that India operated under a regime of comprehensive

safeguards governing biometric data during the period when the Aadhaar

project was governed by an executive notification, in the absence of a

legislative framework. The absence of a legislative framework rendered the

collection of biometric data vulnerable to serious violations of privacy. There

are two distinct facets here. First, the absence of a legislative framework for

the Aadhaar project between 2009 and 2016 left the biometric data of millions

of Indian citizens bereft of the kind of protection which a law, as envisaged in

Puttaswamy, must provide to comprehensively protect and enforce the right

to privacy. Second, the notification of 2009 does not authorise the collection of

biometric data. Consequently, the validation of actions taken under the 2009

notification by
Section 59
does not save the collection of biometric data prior

to the enforcement of the Act. Privacy is of paramount importance. No

invasion of privacy can be allowed without proper, adequate and stringent
PART J

safeguards providing not only penalties for misuse or loss of one’s personal

information, but also for protection of that person.

307 The Respondents have relied upon several judgments where this Court

has upheld validating statutes, which, they contend, are similar to
Section 59
.

The first decision which needs to be discussed is the judgment of the

Constitution Bench in West Ramnad, which dealt with a validating statute of

the Madras Legislature. Act 43 of 1949 of the Madras Legislature which

sought to acquire electricity undertakings in the state was struck down for

want of legislative competence. In the meantime, the Constitution came into

force, and under the Seventh Schedule, the State acquired legislative

competence. A fresh law was enacted in 1954.
Section 24
sought to validate

actions done and taken under the 1949 Act.
Section 24
provided thus:

“Orders made, decisions or directions given, notifications
issued, proceedings taken and acts or things done, in relation
to any undertaking taken over, if they would have been
validly made, given, issued, taken or done, had the
Madras Electricity Supply Undertakings (Acquisition) Act
1949 (Madras Act 43 of 1949), and the rules made
thereunder been in force on the date on which the said
orders, decisions or directions, notifications, proceeding, acts
or things were made, given, issued, taken or done are hereby
declared to have been validly made, given, issued, taken
or done, as the case may be, except to the extent to
which the said orders, decisions, directions,
notifications, proceedings, acts or things are repugnant
to the provisions of this Act.” (Emphasis supplied)

Section 24
was held to be a provision, which saved and validated actions

validly taken under the provisions of the earlier Act, which was invalid from the
PART J

inception. Justice Gajendragadkar, speaking for the Court, interpreted
Section
thus:

“12. The first part of the section deals, inter alia, with
notifications which have been validly issued under the
relevant provisions of the earlier Act and it means that if
the earlier Act had been valid at the relevant time, it ought to
appear that the notifications in question could have been and
had in fact been made properly under the said Act. In other
words, before any notification can claim the benefit of

Section 24
, it must be shown that it was issued properly
under the relevant provisions of the earlier Act, assuming
that the said provisions were themselves valid and in
force at that time. The second part of the section provides
that the notifications covered by the first part are declared by
this Act to have been validly issued; the expression “hereby
declared” clearly means “declared by this Act” and that shows
that the notifications covered by the first part would be treated
as issued under the relevant provisions of the Act and would
be treated as validly issued under the said provisions. The
third part of the section provides that the statutory declaration
about the validity of the issue of the notification would be
subject to this exception that the said notification should not
be inconsistent with or repugnant to the provisions of the Act.
In other words, the effect of this section is that if a
notification had been issued properly under the
provisions of the earlier Act and its validity could not
have been impeached if the said provisions were
themselves valid, it would be deemed to have been
validly issued under the provisions of the Act, provided,
of course, it is not inconsistent with the other provisions
of the Act. The section is not very happily worded, but on its
fair and reasonable construction, there can be no doubt about
its meaning or effect.” (Emphasis supplied)

308 The second decision is a four judge Bench judgment in Chetty, which

dealt with the competence of a legislature to remedy a discriminatory

procedure retrospectively. There were two Acts in Mysore for acquisition of

private land for public purposes − the
Mysore Land Acquisition Act, 1894
and

the City of Bangalore Improvement Act, 1945. The respondent challenged a

notification which was issued under the 1894 Act for the acquisition of his land
PART J

in Bangalore, on the ground that recourse to the provisions of the
Land

Acquisition Act
was discriminatory because in other cases the provisions of

the Improvement Act were applied. The High Court accepted the contention,

against which there was an appeal to this Court. During the pendency of the

appeal, the Bangalore Acquisition of Lands (Validation) Act, 1962 was

passed. The 1962 Act contained two provisions.
Section 2
provided:

“2. Validation of certain acquisition of lands and proceedings
and orders connected therewith.-

(1) Notwithstanding anything contained in the City of
Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945),
or in any other law, or in any judgment, decree or order of
any court:

(a) every acquisition of land for the purpose of
improvement, expansion or development of the City of
Bangalore or any area to which the City of Bangalore
Improvement Act, 1945, extends, made by the State
Government acting or purporting to act under the

Mysore Land Acquisition Act, 1894
(Mysore Act 7 of
1894), at any time before the commencement of this
Act, and every proceeding held, notification issued and
order made in connection with the acquisition of land for
the said purpose shall be deemed for all purposes to
have been validly made, held to issue, as the case
may be, and any acquisition proceeding
commenced under the
Mysore Land Acquisition
Act, 1894
, for the said purpose before the
commencement of this Act but not concluded before
such commencement, may be continued under the

Land Acquisition Act, 1894
(Central Act 1 of 1894), as
extended to the State of Mysore by the Land Acquisition
(Mysore Extension and Amendment) Act, 1961, and
accordingly no acquisition so made, no proceeding
held, no notification issued and no order made by the
State Government or by any authority under the
Mysore
Land Acquisition Act, 1894
, or the
Land Acquisition Act,
, in connection with any such acquisition shall be
called in question on the ground that the State
Government was not competent to make acquisition of
land for the said purpose under the said Act or on any
other ground whatsoever;

(b) any land to the acquisition of which the provisions of
clause (a) are applicable shall, after it has vested in the
State Government, be deemed to have been
PART J

transferred, or stand transferred, as the case may be, to
the Board of Trustees for the improvement of the City of
Bangalore.” (Emphasis supplied)

The Act
of 1962 validated all acquisitions made, proceedings held,

notifications issued or orders made under the Mysore Land Acquisition Act

before the validating law came into force. The Validation Act was challenged

on the ground that it was discriminatory to provide two Acts which prescribed

two different procedures under the acquisition laws in the same field. This

Court found that the legislature retrospectively made a single law for the

acquisition of properties and upheld the validating Act. It was held:

“15. If two procedures exist and one is followed and the other
discarded, there may in a given case be found discrimination.
But the Legislature has still the competence to put out of
action retrospectively one of the procedures leaving one
procedure only available, namely, the one followed and thus
to make disappear the discrimination. In this way a Validating
Act can get over discrimination. Where, however, the
legislative competence is not available, the discrimination
must remain for ever, since that discrimination can only be
removed by a legislature having power to create a single
procedure out of two and not by a legislature which has not
that power.”

309 In West Ramnad, the validation depended upon the condition that a

notification or act ought to have been validly issued or done under the earlier

statute, presuming that the earlier Act was itself valid at that time. In the

present case, there was no earlier law governing the actions of the

government for the collection of biometric data. The Aadhaar Act was notified

in 2016. The Planning Commission’s notification of 2009 and the Ministry of

Information and Technology’s notification of 2015 were not issued under any
PART J

statute. Therefore, the validating law in West Ramnad was clearly of a

distinct genre. West Ramnad will be of no assistance to the Union of India.

310 The decision in Chetty in fact brings out the essential attributes of a

validating law. The existence of two legislations governing the field of land

acquisition had been found to be discriminatory and hence violative of
Article
by the High Court (on the basis of the position in law as it then stood).

During the pendency of the appeal before this Court, the legislature enacted a

validating law which removed the cause for invalidity. The reason the state

law had been invalidated by the High Court was the existence of two laws

governing the same field. This defect was removed. To use the words of this

Court, the legislature “put out of action retrospectively one of the procedures”

as a result of which only one procedure was left in the field. The decision in

Chetty thus brings out the true nature of a validating law. A validating law

essentially removes the deficiency which is found to exist in the earlier

enactment. By curing the defect, it validates actions taken under a previous

enactment.

311 The third judgment of seven judges is in Hari Singh. The

constitutionality of the
Public Premises (Eviction of Unauthorised Occupants)

Act, 1958
was challenged on the ground that
Section 5(1)
contravened Article

14.
Section 5(1)
conferred power on the Estate Officer to make an order of

eviction against persons who were in unauthorised occupation of public
PART J

premises. During the pendency of the appeal before this
Court, the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971
was enacted, which

validated all actions taken under the Act of 1958. The constitutional validity of

the 1971 Act was also challenged.
Section 20
of the later Act provided:

“Notwithstanding any judgment, decree or order of any court,
anything done or any action taken (including rules or
orders made, notices issued, evictions ordered or effected,
damages assessed, rents or damages or costs recovered and
proceedings initiated) or purported to have been done or
taken under the
Public Premises (Eviction of
Unauthorised Occupants) Act, 1958
shall be deemed to
be as valid and effective as if such thing or action was
done or taken under the corresponding provisions of this
Act which, under Sub-section (3) of
Section 1
shall be
deemed to have come into force on the 16th day of
September, 1958 ...” (Emphasis supplied)

The Court held that the legislature has the power to validate actions under an

earlier law by removing its infirmities. In that case, validation was achieved by

enacting the 1971 Act with retrospective effect from 1958 and legislating that

actions taken under the earlier law will be deemed to be as valid and effective

as if they were taken under the 1971 Act. The Court held:

“24. The 1958 Act has not been declared by this Court to be
unconstitutional… The arguments on behalf of the appellants
therefore proceeded on the footing that the 1958 Act will be
presumed to be unconstitutional. It was therefore said that the
1971 Act could not validate actions done under the 1958 Act.
The answer is for the reasons indicated above that the
Legislature was competent to enact this legislation in 1958
and the Legislature by the 1971 Act has given the legislation
full retrospective operation. The Legislature has power to
validate actions under an earlier Act by removing the
infirmities of the earlier Act. The 1971 Act has achieved that
object of validation.”
PART J

The Court approved the Constitution Bench decision in West Ramnad:

“16. The ruling of this Court in
West Ramnad Electric
Distribution Co. Ltd.
case establishes competence of the
legislature to make laws retrospective in operation for the
purpose of validation of action done under an earlier Act
which has been declared by a decision of the court to be
invalid. It is to be appreciated that the validation is by virtue of
the provisions of the subsequent piece of legislation.”

In Hari Singh, the validating Act retrospectively authorised the actions

undertaken under the previous Act, which had been invalidated by a court

decision. The validating law of 1971 was enacted with retrospective effect

from 1958.

312 Reliance was placed by the Respondents on the judgments of this

Court in Jaora Sugar Mills (P) Ltd. v State of Madhya Pradesh550 (Jaora

Sugar Mills), SKG Sugar Ltd. v State of Bihar551 (“SKG Sugar”) and

Krishna Chandra Gangopadhyaya v Union of India552 (“Krishna

Chandra”), to contend that in the case of fiscal legislation, where an

enactment was struck down for violating
Article 265
or the fundamental

rights, of a citizen, validating Acts were enacted after removing the flaw and

that in cases where the state Legislature was held to be incompetent to enact

a taxing measure, a validating law was enacted by Parliament by making a

substantive provision.

550 (1966) 1 SCR 523
551 (1974) 4 SCC 827
552 (1975) 2 SCC 302
PART J

313 In Jaora Sugar Mills, a state law imposing cess was struck down for

want of legislative competence. Parliament enacted the
Sugarcane Cess

(Validation) Act, 1961
to validate the imposition of cess under the invalidated

state law.
Section 3(1)
of the 1961 Act provided:

“12…Notwithstanding any judgment, decree or order of any
Court, all cesses imposed, assessed or collected or
purporting to have been imposed, assessed or collected
under any State Act before the commencement of this act
shall be deemed to have been validly imposed, assessed
or collected in accordance with law, as if the provisions of
the State Acts and of all notifications, orders and rules
issued or made thereunder, in so far as such provisions relate
to the imposition, assessment and collection of such cess had
been included in and formed part of this section and this
section had been in force at all material times when such
cess was imposed, assessed or collected; ….”
(Emphasis supplied)

The Section was upheld. Speaking for the Constitution Bench, Chief Justice

Gajendragadkar held:

“14... What Parliament has done by enacting the said section
is not to validate the invalid State Statutes, but to make a law
concerning the cess covered by the said Statutes and to
provide that the said law shall come into operation
retrospectively. There is a radical difference between the
two positions. Where the legislature wants to validate an
earlier Act which has been declared to be invalid for one
reason or another, it proceeds to remove the infirmity from the
said Act and validates its provisions which are free from any
infirmity.” (Emphasis supplied)

The state law was held to be invalid for want of legislative competence.

Parliament, which was competent to enact a law on the subject, did so with

retrospective effect and validated actions which were taken under the invalid

state law.
PART J

314 In SKG Sugar, a state law - Bihar Sugar Factories Control Act, 1937 -

was declared unconstitutional. In 1969, during President's Rule in Bihar,

Parliament enacted the
Bihar Sugarcane (Regulation of Supply and

Purchase) Act, 1969
.
Section 66(1)
of the Act provided:

“12…Notwithstanding any judgment, decree or order of any
court, all cesses and taxes imposed, assessed or collected
or purporting to have been imposed, assessed or collected
under any State law, before the commencement of this Act,
shall be deemed to have been validly imposed, assessed
or collected in accordance with law as if this Act had been
in force at all material times when such cess or tax was
imposed, assessed or collected and accordingly....” 553
(Emphasis supplied)

The Constitution Bench held:

“32… By virtue of the legal fiction introduced by the validating
provision in
Section 66(1)
, the impugned notification will be
deemed to have been issued not necessarily under the
Ordinance No. 3 of 1968 but under the President's Act, itself,
deriving its legal force and validity directly from the latter.”554

315 In Krishna Chandra, provisions of the
Bihar Land Reforms Act, 1950

were struck down for want of legislative competence. Parliament enacted the

Mines and Minerals (Regulation and Development) Act, 1957
to validate those

provisions with retrospective effect.
Section 2
provided that:

“1…(2). Validation of certain Bihar State laws and action
taken and things done connected therewith.-

(1) The laws specified in the schedule shall be and shall
be deemed always to have been, as valid as if the
provisions contained therein had been enacted by
Parliament.

(2) Notwithstanding any judgment, decree or order of any
court, all actions taken, things done, rules made,
notifications issued or purported to have been taken, done,

553 Ibid, at page 831
554 Ibid, at page 835
PART J

made or issued and rents or royalties realised under any
such laws shall be deemed to have been validly taken,
done, made, issued or realised, as the case may be, as if this
section had been in force at all material times when such
action was taken, things were done, rules were, made,
notifications were issued, or rents or royalties were realised,
and no suit or other proceedings shall be maintained or
continued in any court for the refund of rents or royalties
realised under any such laws.

(3) For the removal of doubts, it is hereby declared that
nothing in Sub-section (2) shall be construed as preventing
any person from claiming refund of any rents or royalties paid
by him in excess of the amount due from him under any such
laws.”555 (Emphasis supplied)

The central issue in the case was whether a statute and a rule earlier

declared to be unconstitutional or invalid, can be retroactively enacted through

fresh validating legislation by the competent Legislature. The Court held that it

could be.

316 Section 59 of the Aadhaar Act is different from the validating provisions

in Jaora Sugar Mills, SKG Sugar and Krishna Chandra. In those cases,

state laws were invalid for want of legislative competence. Parliament, which

undoubtedly possessed legislative competence, could enact a fresh law with

retrospective effect and protect actions taken under the state law. The

infirmity being that the earlier laws were void for absence of competence in

the legislature, the fresh laws cured the defect of the absence of legislative

competence.

555 Ibid, at page 306
PART J

317 Parliament and the State Legislatures have plenary power to legislate

on subjects which fall within their legislative competence. The power is

plenary because the legislature can legislate with prospective as well as with

retrospective effect. Where a law suffers from a defect or has been

invalidated, it is open to the legislature to remove the defect. While doing that,

the legislature can validate administrative acts or decisions made under the

invalid law in the past. The true test of a validation is that it must remove the

defects in the earlier law. It is not enough for the validating law to state that

the grounds of invalidity of the earlier law are deemed to have been removed.

The validating law must remove the deficiencies. There were several

deficiencies in the collection of biometric data during the period between 2009

and 2016, before the Aadhaar Act came into force. The first was the absence

of enabling legislation. As a result, the collection of sensitive personal

information took place without the authority of law. Second, the notification of

2009 did not authorize the collection of biometric data. Third, the collection of

biometric data was without an enabling framework of the nature which the

Aadhaar Act put into place with effect from 2016. The Aadhaar Act introduced

a regime for obtaining informed consent, securing the confidentiality of

information collected from citizens, penalties and offences for breach and

regulated the uses to which the data which was collected could be put. In the

absence of safeguards, the collection of biometric data prior of the enactment

of Aadhaar Act 2016 is ultra vires.
PART J
Section 59
does not remove the cause for invalidity. First,
Section 59

protects actions taken under the notification of 2009. The notification does not

authorize the collection of biometric data. Hence,
Section 59
would not

provide legal authority for the collection of biometrics between 2009 and 2016.

Second, it was through the Aadhaar Act, that safeguards were sought to be

introduced for ensuring informed consent, confidentiality of information

collected, restrictions on the use of the data and through a regime of penalties

and offences for violation.
Section 59
does not cure the absence of these

safeguards between 2009 and 2016.
Section 59
fails to meet the test of a

validating law for the simple reason that the absence of safeguards and of a

regulatory framework is not cured merely by validating what was done under

the notifications of 2009 and 2016. There can be no dispute about the

principle that the legislature is entitled to cure the violation of a fundamental

right. But in order to do so, it is necessary to cure the basis or the foundation

on which there was a violation of the fundamental right. The deficiency must

be demonstrated to be cured by the validating law.
Section 59
evidently fails

to do so. It fails to remedy the deficiencies in regard to the conditions under

which the collection of biometric data took place before the enforcement of the

Aadhaar Act in 2016.

The Respondents submitted that
Section 59
creates a deemed fiction and

cited a few judgments in support of this contention. In Bishambhar Nath
PART J

Kohli v State of Uttar Pradesh556, an Ordinance repealed another

Ordinance.
Section 58(3)
of the repealing Ordinance stated:

“6…The repeal by this Act of the Administration of Evacuee
Property Ordinance, 1949 or the Hyderabad Administration of
Evacuee Property Regulation or of any corresponding law
shall not affect the previous operation of that Ordinance,
Regulation or corresponding law, and subject thereto,
anything done or any action taken in the exercise of any
power conferred by or under that Ordinance, Regulation
or corresponding law, shall be deemed to have been
done or taken in the exercise of the powers conferred by
or under this Act as if this Act were in force on the day
on which such thing was done or action was taken.”
(Emphasis supplied)

319 A Constitution Bench of this Court held that by virtue of
Section 58
, all

things done and actions taken under the repealed ordinance are deemed to

be done or taken in exercise of the powers conferred by the repealing Act, as

if that Act were in force on the day on which that thing was done or action was

taken. The things done or actions taken under the repealed ordinance are to

be deemed by fiction to have been done or taken under the repealing Act. The

actions were validated because the Act, in this case, was deemed to be “in

force on the day on which such thing was done or action was taken”. Section

59 of the Aadhaar Act does not create this fiction. The Aadhaar Act does not

come in force on the date on which the actions, which this Section seeks to

validate, were taken.

320 A three judge Bench headed by one of us, Hon’ble Mr Justice Dipak

Misra (as the learned Chief Justice then was) in
State of Karnataka v State

556 (1966) 2 SCR 158
PART J

of Tamil Nadu557, was dealing with a batch of civil appeals filed against a final

order of the Cauvery Water Disputes Tribunal constituted under the
Inter-

State River Water Disputes Act, 1956
.
Section 6(2)
of the 1956 Act provides:

“72…6(2).The decision of the Tribunal, after its publication in
the Official Gazette by the Central Government under Sub-
section (1), shall have the same force as an order or decree
of the Supreme Court.”558

Relying on
Section 6(2)
, it was contended that the jurisdiction of this Court is

ousted as it cannot sit in appeal on its own decree. The Court did not accept

the submission and held:

“74. The language employed in
Section 6(2)
suggests that the
decision of the tribunal shall have the same force as the order
or decree of this Court. There is a distinction between having
the same force as an order or decree of this Court and
passing of a decree by this Court after due adjudication. The
Parliament has intentionally used the words from which it can
be construed that a legal fiction is meant to serve the purpose
for which the fiction has been created and not intended to
travel beyond it. The purpose is to have the binding effect of
the tribunal's award and the effectiveness of enforceability.
Thus, it has to be narrowly construed regard being had to the
purpose it is meant to serve…559

81…it is clear as crystal that the Parliament did not intend to
create any kind of embargo on the jurisdiction of this Court.
The said provision was inserted to give the binding effect to
the award passed by the tribunal. The fiction has been
created for that limited purpose.”560 (Emphasis supplied)

The judgment makes it clear that a deeming fiction cannot travel beyond what

was originally intended. As stated earlier, the action of collecting and

authentication of biometrics or the requirement of informed consent finds no

557 (2017) 3 SCC 362
558 Ibid, at page 405
559 Ibid, at page 406
560 Ibid, at page 408
PART J

mention in the 2009 notification. Therefore,
Section 59
cannot be held to

create a deeming fiction that all the actions taken under the notifications

issued were done under the Act and not under the aforesaid notifications.

321 This Court must also deal with the Respondents’ submission that

Parliament is not debarred from enacting a validation law even though the

Court did not have the opportunity to rule on the validity of the notifications

which are purported by
Section 59
to have been validated. The Respondents

have placed reliance on a two judge Bench decision in
Amarendra Kumar

Mohapatra v State of Orissa.561 This
case involved a challenge to the

constitutional validity of the
Orissa Service of Engineers (Validation of

Appointment) Act, 2002
enacted to regularise ad hoc appointments of

employees. The issue before the Court was whether the Orissa Act was in

effect a validation statute to validate any illegality or defect in a pre-existing

Act or rule in existence. The Court held that since the Orissa Act merely

regularised the appointment of graduate Stipendiary Engineers working as ad

hoc Assistant Engineers as Assistant Engineers, it could not be described as

a validating law. It was held the legislation did not validate any such non-

existent act, but simply appointed the ad hoc Assistant Engineers as

substantive employees of the State by resort to a fiction. This Court held:

“31…a prior judicial pronouncement declaring an act,
proceedings or rule to be invalid is not a condition precedent
for the enactment of a Validation Act. Such a piece of
legislation may be enacted to remove even a perceived
invalidity, which the Court has had no opportunity to adjudge.

561 (2014) 4 SCC 583
PART J

Absence of a judicial pronouncement is not, therefore, of
much significance for determining whether or not the
legislation is a validating law.”562

The
Court further held
that:

“25. … when the validity of any such Validation Act is called in
question, the Court would have to carefully examine the
law and determine whether (i) the vice of invalidity that
rendered the act, rule, proceedings or action invalid has
been cured by the validating legislation (ii) whether the
legislature was competent to validate the act, action,
proceedings or rule declared invalid in the previous
judgments and (iii) whether such validation is consistent
with the rights guaranteed by Part III of the Constitution.
It is only when the answer to all these three questions is in
the affirmative that the Validation Act can be held to be
effective and the consequences flowing from the adverse
pronouncement of the Court held to have been neutralised.”
(Emphasis supplied)

322 The two judge Bench relied upon the Constitution Bench decision of

this Court in
Shri Prithvi Cotton Mills Ltd v Broach Borough

Municipality563
to formulate the following pre-requisites of a piece of

legislation that purports to validate any act, rule, action or proceedings:

“(a) The legislature enacting the Validation Act should be
competent to enact the law and;

(b) the cause for ineffectiveness or invalidity of the Act or the
proceedings needs to be removed.”

These judgments suggest that while there can be no disagreement with the

proposition that a legislature has the power, within its competence, to make a

law to validate a defective law, the validity of such a law would depend upon

whether it removes the cause of ineffectiveness or invalidity of the previous

562 Ibid, at page 604
563 (1969) 2 SCC 283
PART K

Act
or proceedings. Parliament has the power to enact a law of validation to

cure an illegality or defect in the pre-existing law, with or without a judicial

determination. But that law should cure the cause of infirmity or invalidity.

Section 59
fails to cure the cause of invalidity prior to the enactment of the

Aadhaar Act.

K Rule of law and violation of interim orders

323 The rule of law is the cornerstone of modern democratic societies and

protects the foundational values of a democracy. When the rule of law is

interpreted as a principle of constitutionalism, it assumes a division of

governmental powers or functions that inhibits the exercise of arbitrary State

power. It also assumes the generality of law: the individual's protection from

arbitrary power consists in the fact that her personal dealings with the State

are regulated by general rules, binding on private citizens and public officials

alike.564

It envisages a fundamental separation of powers among different organs of

the State. Separation of power supports the accountability aspect of the rule of

law. Separation of the judicial and executive powers is an essential feature of

the rule of law. By entrusting the power of judicial review to courts, the

doctrine prevents government officials from having the last word on whether

564T.
R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law
(2001), available at
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199267880.001.0001/acprof-9780199267880-
chapter-2
PART K

they have acted illegally. The separation of judicial power provides an

effective check on the executive branch.565

324 The concepts of the rule of law and separation of powers have been

integral to Indian constitutional discourse. While both these concepts have not

been specified in as many words in the Constitution, they have received

immense attention from this Court in its judgments. Though the Indian

Constitution does not follow the doctrine of separation of powers in a rigid

sense, the following statement of the law by Chief Justice Mukherjea in
Ram

Sahib Ram Jawaya Kapur v State of Punjab566
is widely regarded as

defining the core of its content:

“12…The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions
that essentially belong to another...”

Separation of powers envisages a system of checks and balances, which

ensures governance by law and not by the caprice of those to whom

governance is entrusted for the time being. By curbing excesses of power, it

has a direct link with the preservation of institutional rectitude and individual

liberty.
In
S G Jaisinghani v Union of India567
, this Court held that:

“14. In this context it is important to emphasize that the
absence of arbitrary power is the first essential of the rule of

565Denise Meyerson, The Rule of Law and the Separation of Powers (2004), available at
http://www5.austlii.edu.au/au/journals/MqLJ/2004/1.html
566 (1955) 2 SCR 225
567 (1967) 2 SCR 703
PART K

law upon which our whole constitutional system is based. In a
system governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly
defined limits. The rule of law from this point of view means
that decisions should be made by the application of known
principles and rules and, in general, such decisions should be
predictable and the citizen should know where he is. If a
decision is taken without any principle or without any rule it is
unpredictable and such a decision is the antithesis of a
decision taken in accordance with the Rule of law…”

The separation of powers between the legislature, the executive and the

judiciary has been declared to be part of the basic structure of the

Constitution. In Kesavananda Bharati v State of Kerala568, Chief Justice

Sikri held that:

“292…The basic structure may be said to consist of the
following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary;

(5) Federal character of the Constitution.”569
(Emphasis supplied)

Justice HR Khanna held that the rule of law meant “supremacy of the

Constitution and the laws as opposed to arbitrariness”570. The same view is

expressed in subsequent decisions of this Court.571 In Smt Indira Nehru

Gandhi v Shri Raj Narain572, Chief Justice AN Ray held the rule of law to be

the basis of democracy.

568 (1973) 4 SCC 225
569 Ibid, at page 366
570 Ibid, at para 1529
571Smt.
Indira Nehru Gandhi v. Shri Raj Narain
, 1975 (Supp.)

SCC 1;
State of Bihar v. Bal Mukund Sah
, (2000) 4

SCC 640];
I .R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu
, (2007) 2 SCC 1.

572 1975 Supp SCC 1
PART K

The functional relationship between separation of powers and the rule of law

was discussed by a Constitution Bench of this Court in
State of Tamil Nadu v

State of Kerala573
, as follows:

“98. Indian Constitution, unlike the Constitution of United
States of America and Australia, does not have express
provision of separation of powers. However, the structure
provided in our Constitution leaves no manner of doubt that
the doctrine of separation of powers runs through the Indian
Constitution. It is for this reason that this Court has
recognized separation of power as a basic feature of the
Constitution and an essential constituent of the rule of law.
The doctrine of separation of powers is, though, not expressly
engrafted in the Constitution, its sweep, operation and
visibility are apparent from the Constitution. Indian
Constitution has made demarcation without drawing formal
lines between the three organs--legislature, executive and
judiciary.”

This Court has consistently held judicial review to be an essential component

of the separation of powers as well as of the rule of law. Judicial review

involves determination not only of the constitutionality of law but also of the

validity of administrative action. It protects the essence of the rule of law by

ensuring that every discretionary power vested in the executive is exercised in

a just, reasonable and fair manner.

325 In a reference574 under
Article 143
of the Constitution, a seven judge

Bench held that irrespective of “whether or not there is distinct and rigid

separation of powers under the Indian Constitution”, the judicature has been

entrusted the task of construing the provisions of the Constitution and of

safeguarding the fundamental rights of citizens. It was held:

573 (2014)12 SCC 696
574 (1965) 1 SCR 413
PART K

“41…When a statute is challenged on the ground that it has
been passed by Legislature without authority, or has
otherwise unconstitutionally trespassed on fundamental
rights, it is for the courts to determine the dispute and decide
whether the law passed by the legislature is valid or not… If
the validity of any law is challenged before the courts, it is
never suggested that the material question as to whether
legislative authority has been exceeded or fundamental rights
have been contravened, can be decided by the legislatures
themselves. Adjudication of such a dispute is entrusted solely
and exclusively to the Judicature of this country…”

In his celebrated dissent in
Additional District Magistrate, Jabalpur v

Shivakant Shukla575, Justice HR Khanna
, while referring to the rule of law as

the “antithesis of arbitrariness”, held:

“527…Rule of law is now the accepted norm of all civilised
societies... [E]verywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the
opposing notions of individual liberty and public order. In
every State the problem arises of reconciling human rights
with the requirements of public interest. Such harmonising
can only be attained by the existence of independent courts
which can hold the balance between citizen and State and
compel Governments to conform to the law.”576

326 Judicial review has been held to be one of the basic features of the

Constitution. A seven judge Bench of this Court, in
L Chandra Kumar v

Union of India577
, declared:

“78… the power of judicial review over legislative action
vested in the High Courts under
Article 226
and in the
Supreme Court under
Article 32
of the Constitution is an
integral and essential feature of the Constitution, constituting
part of its basic structure.”578

575 (1976) 2 SCC 521
576 Ibid, at page 748
577 (1997) 3 SCC 261
578 Ibid, at page 301
PART K

The complementary relationship between judicial review, the rule of law and

the separation of powers is integral to working of the Constitution. This Court

in
I R Coelho v State of Tamil Nadu579
held thus:

“129… Equality, rule of law, judicial review and separation of
powers form parts of the basic structure of the Constitution.
Each of these concepts are intimately connected. There can
be no rule of law, if there is no equality before the law. These
would be meaningless if the violation was not subject to the
judicial review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been
transgressed has been placed on the judiciary.”580

Judicial review, by protecting individual rights, promotes the foundational

values of the Constitution and the rule of law. This Court took note of this

aspect in Puttaswamy:

“295. Above all, it must be recognized that judicial review is a
powerful guarantee against legislative encroachments on life
and personal liberty. To cede this right would dilute the
importance of the protection granted to life and personal
liberty by the Constitution. Hence, while judicial review in
constitutional challenges to the validity of legislation is
exercised with a conscious regard for the presumption of
constitutionality and for the separation of powers between the
legislative, executive and judicial institutions, the
constitutional power which is vested in the Court must be
retained as a vibrant means of protecting the lives and
freedoms of individuals.”581

327 Constitutional adjudication facilitates answers to the silences of the

Constitution. The task of interpretation is to foster the spirit of the Constitution

as much as its text. This role has exclusively been conferred on the Supreme

Court and the High Courts to ensure that its values are not diminished by the

579 (2007) 2 SCC 1
580 Ibid, at page 58
581 Ibid, at page 497
PART K

legislature or the executive. Our Court has been conscious of this role.
In

Krishna Kumar Singh v State of Bihar582
, while dealing with the question

whether an ordinance (promulgated by the Governor) which has a limited life

can bring about consequences for the future (in terms of the creation of rights,

privileges, liabilities and obligations) which will enure beyond its life, a seven

judge Bench held that:

“91…The silences of the Constitution must be imbued
with substantive content by infusing them with a
meaning which enhances the Rule of law. To attribute to
the executive as an incident of the power to frame
ordinances, an unrestricted ability to create binding effects for
posterity would set a dangerous precedent in a parliamentary
democracy. The court's interpretation of the power to frame
ordinances, which originates in the executive arm of
government, cannot be oblivious to the basic notion that the
primary form of law making is through the legislature...”583
(Emphasis supplied)

The Court held that the ordinance making power must be carefully structured

to ensure that it remains what the framers of our Constitution intended it to be:

an exceptional power to meet a constitutional necessity.

328 In a constitutional democracy, the power of government, is defined,

limited, and distributed by the fundamental norms of the Constitution. A

constitutional democracy holds its political regime accountable, responsible, or

answerable for its decisions and actions while in public office. 584 A

582 (2017) 3 SCC 1
583 Ibid, at page 76
584 Almon Leroy Way, Jr., Constitutional Democracy & Other Political Regimes, available at

http://www.proconservative.net/CUNAPolSci201PartTWOA.shtml
PART K

constitutional democracy determines the degree and manner of distribution of

political authority among the major organs or parts of the government. The

limits of each institution are set by the Constitution. No institution which has

been created by the Constitution can have absolute power. Separation of

powers, envisaged by the Constitution between different institutions acts as a

check and balance among the institutions and promotes the rule of law by

ensuring that no institution can act in an arbitrary manner. Judicial review as

a part of the basic structure of the Indian Constitution and as an essential

component of the rule of law and separation of powers, is intended to ensure

that every institution acts within its limits. Judicial review promotes

transparency, consistency and accountability in the administration of law, and

notions of equity, justice and fairness585. Constitutionalism thus puts a legal

limitation on the government.
It envisages the existence of limited

government. Discretion conferred upon an institution of governance, be it the

legislature or the executive, is confined within clearly defined limits of the

Constitution. Not only are the organs of the State required to operate within

their defined legitimate spheres; they are bound to exercise their powers

within these spheres without violating the Constitution.586 Judicial review is a

sanction and agency to enforce the limitations imposed by the Constitution

upon the authority of the organs of the State.

585In Sheela Barse v. State of Maharashtra
((1983) 2 SCC 96), the Supreme Court insisted on fairness to women
in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody,
especially female prisoners.

In
Veena Sethi v. State of Bihar
(AIR 1982 S.C. 1470), the Supreme Court
extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not
merely for those who have the means to fight for their rights and expanded the locus standi principle to help the
poor
586Durga Das Basu, Limited Government and Judicial Review, LexisNexis, (2016) at pages 123-124
PART K

This formulation of the limited power of political authority has been recognized

in several judgments of this Court.

In
State of M P v Thakur Bharat Singh587
,

a Constitution Bench held:

“5…Our federal structure is founded on certain fundamental
principles: (1) the sovereignty of the people with limited
Government authority i.e. the Government must be
conducted in accordance with the will of the majority of the
people. The people govern themselves through their
representatives, whereas the official agencies of the
executive Government possess only such powers as have
been conferred upon them by the people; (2) There is a
distribution of powers between the three organs of the
State — legislative, executive and judicial — each organ
having some check direct or indirect on the other; and (3)
the rule of law which includes judicial review of arbitrary
executive action…” (Emphasis supplied)

329 In a decision rendered by a Constitution Bench, in S P Sampath Kumar

v Union of India588, Chief Justice P.N. Bhagwati, in his concurring opinion,

held:

“3…It is a fundamental principle of our constitutional scheme
that every organ of the State, every authority under the
Constitution, derives its power from the Constitution and has
to act within the limits of such power. It is a limited
government which we have under the Constitution and both
the executive and the legislature have to act within the limits
of the power conferred upon them under the Constitution…
The judiciary is constituted the ultimate interpreter of the
Constitution and to it is assigned the delicate task of
determining what is the extent and scope of the power
conferred on each branch of government, what are the
limits on the exercise of such power under the
Constitution and whether any action of any branch

587(1967) 2 SCR 454
588 (1987) 1 SCC 124
PART K

transgresses such limits. It is also a basic principle of the
rule of law which permeates every provision of the
Constitution and which forms its very core and essence that
the exercise of power by the executive or any other authority
must not only be conditioned by the Constitution but also be
in accordance with law and it is the judiciary which has to
ensure that the law is observed and there is compliance with
the requirements of law on the part of the executive and other
authorities…”589 (Emphasis supplied)

330 In
I R Coelho v State of Tamil Nadu590
, a nine judge Bench held that

control over government power ensures that the foundational values of a

democracy are not damaged:

“43…The principle of constitutionalism advocates a check
and balance model of the separation of powers; it requires a
diffusion of powers, necessitating different independent
centres of decision-making… The role of the judiciary is to
protect fundamental rights. A modern democracy is based on
the twin principles of majority rule and the need to protect
fundamental rights. According to Lord Steyn, it is job of the
judiciary to balance the principles ensuring that the
Government on the basis of number does not override
fundamental rights.”

The rule of law is an implied limitation on the authority of any institution in a

constitutional democracy.591

331 Interim orders of courts are an integral element of judicial review.

Interim directions issued on the basis of the prima facie findings in a case are

589 Ibid, at pages 128-129
590 (2007) 2 SCC 1
591 K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1
PART K

temporary arrangements till the matter is finally decided. Interim orders ensure

that the cause which is being agitated does not become infructuous before the

final hearing.592 The power of judicial review is not only about the writs issued

by superior courts or the striking down of governmental action. Entrustment of

judicial review is accompanied by a duty to ensure that judicial orders are

complied with. Unless orders are enforced, citizens will lose faith in the

efficacy of judicial review and in the legal system.

It is in the background of the above constitutional position that this Court must

deal with the contention that the interim orders passed by this Court, during

the adjudication of the present dispute were not observed. This Court has

consistently insisted, through its interim orders, on a restraint on the

mandatory use of Aadhaar. It has been submitted that the interim orders have

been violated and several contempt petitions are pending593 before this Court.

332 Prior to the enactment of the Aadhaar Act, the scheme was challenged

before this Court. By its interim order dated 23 September 2013 594, a two

judge Bench directed:

“All the matters require to be heard finally. List all matters for
final hearing after the Constitution Bench is over.

In the meanwhile, no person should suffer for not getting
the Aadhaar card in spite of the fact that some authority
had issued a circular making it mandatory and when any
person applies to get the Aadhaar Card voluntarily, it
may be checked whether that person is entitled for it

592State of Assam v. Barak Upatyaka DU Karmachari Sanstha
, (2009) 5 SCC 694
593Contempt Petition (Civil) No. 144/2014 in WP (C) No. 494/2012; Contempt Petition (Civil) No. 674/2014 in WP
(C) No. 829/2013; Contempt Petition (Civil) No 444/2016 in WP (C) No. 494/2012
594The interim order was in WP (Civil No. 494 of 2012)
PART K

under the law and it should not be given to any illegal
immigrant.” (sic)

This was followed by an order dated 26 November 2013 where the earlier

order was continued:

“After hearing the matter at length, we are of the view that all
the States and Union Territories have to be impleaded as
respondents to give effective directions.
In view thereof notice
be issued to all the States and Union Territories through
standing counsel…
Interim order to continue, in the meantime.”

While considering another petition,
Unique Identification Authority of India

v Central Bureau of Investigation595
, this Court directed in an interim order

dated 24 March 2014:

“In the meanwhile, the present petitioner is restrained from
transferring any biometric information of any person who has
been allotted the Aadhaar number to any other agency
without his consent in writing… More so, no person shall be
deprived of any service for want of Aadhaar number in
case he/she is otherwise eligible/entitled. All the
authorities are directed to modify their
forms/circulars/likes so as to not compulsorily require
the Aadhaar number in order to meet the requirement of
the interim order passed by this Court forthwith… Tag
and list the matter with main matter i.e. WP(C)
No.494/2012.”

On 16 March 2015, while considering WP (Civil) 494 of 2012, this Court noted

a violation of its earlier order dated 23 September 2013 and directed thus:

“The matters require considerable time for hearing… In the
meanwhile, it is brought to our notice that in certain
quarters, Aadhaar identification is being insisted upon by
the various authorities. We do not propose to go into the
specific instances. Since Union of India is represented by
learned Solicitor General and all the States are
represented through their respective counsel, we expect

595 SLP (Crl.) No. 2524/2015
PART K

that both the Union of India and States and all their
functionaries should adhere to the Order passed by this
Court on 23rd September, 2013.”

By an order dated 11 August 2015, a three judge Bench referred the issue as

to whether privacy is a fundamental right to a bench of a larger strength of

judges. The following interim directions were issued:

“Having considered the matter, we are of the view that the
balance of interest would be best served, till the matter is
finally decided by a larger Bench if the Union of India or the
UIDAI proceed in the following manner:-

1. The Union of India shall give wide publicity in the electronic
and print media including radio and television networks that it
is not mandatory for a citizen to obtain an Aadhaar card;

2. The production of an Aadhaar card will not be condition for
obtaining any benefits otherwise due to a citizen;

3. The Unique Identification Number or the Aadhaar card will
not be used by the respondents for any purpose other than
the PDS Scheme and in particular for the purpose of
distribution of foodgrains, etc. and cooking fuel, such as
kerosene. The Aadhaar card may also be used for the
purpose of the LPG Distribution Scheme;

4. The information about an individual obtained by the Unique
Identification Authority of India while issuing an Aadhaar card
shall not be used for any other purpose, save as above,
except as may be directed by a Court for the purpose of
criminal investigation.”

On 15 October 2015, a Constitution Bench of this Court partially modified the

order dated 11 August 2015, thus:

“3…we are of the view that in paragraph 3 of the Order dated
11.08.2015, if we add, apart from the other two Schemes,
namely, P.D.S. Scheme and the L.P.G. Distribution Scheme,
the Schemes like The Mahatma Gandhi National Rural
Employment Guarantee Scheme (MGNREGS), National
Social Assistance Programme (Old Age Pensions, Widow
Pensions, Disability Pensions), Prime Minister’s Jan Dhan
Yojana (PMJDY) and Employees’ Provident Fund
Organisation (EPFO) for the present, it would not dilute earlier
order passed by this Court. Therefore, we now include the
aforesaid Schemes apart from the other two Schemes that
this Court has permitted in its earlier order dated 11.08.2015.
PART K

4. We impress upon the Union of India that it shall strictly
follow all the earlier orders passed by this Court commencing
from 23.09.2013.

5. We will also make it clear that the Aadhaar card Scheme is
purely voluntary and it cannot be made mandatory till the
matter is finally decided by this Court one way or the other.”

After the Aadhaar Act was enacted there was a challenge in
All Bengal

Minority Students Council v Union of India596
, to a letter written to the Chief

Secretaries/Administrators of all State Governments/Union territory

Administrations by the Under Secretary to the Government of India, by which

the requirement of the submission of Aadhaar for claiming benefits under a

scheme was made mandatory. By an order dated 14 September 2016, a two

judge Bench directed as follows:

“…we stay the operation and implementation of letters dated
14.07.2006 (i.e. Annexure P-5, P-6 and P-7) for Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme to the extent they
have made submission of Aadhaar mandatory and direct the
Ministry of Electronics and Information Technology,
Government of India i.e. Respondent No.2 to remove
Aadhaar number as a mandatory condition for student
Registration form at the National Scholarship Portal of
Ministry of Electronics and Information Technology,
Government of India at the website
http://scholarships.gov.in/newStudentRegFrm and stay the
implementation of clause (c) of the 'Important Instructions' of
the advertisement dated 20.08.2016 for the Pre-Matric
Scholarship Scheme, Post-Matric Scholarship Scheme and
Merit-cum-Means Scholarship Scheme, during the pendency
of this writ petition.”

It has been submitted that the notifications and circulars, which make the

application of Aadhaar mandatory, are contrary to the interim orders passed

by this Court. It has been contended that the Respondents have flouted the

596 WP (Civil) No. 686/2016
PART K

most elementary norms of good governance and have disrespected judicial

orders. This contention requires serious consideration.

333 The legislature cannot simply declare that the judgment of a court is

invalid or that it stands nullified. In Kalpana Mehta, a Constitution Bench of

this Court held:

“255…If the legislature were permitted to do so, it would
travel beyond the boundaries of constitutional entrustment.
While the separation of powers prevents the legislature from
issuing a mere declaration that a judgment is erroneous or
invalid, the law-making body is entitled to enact a law which
remedies the defects which have been pointed out by the
court. Enactment of a law which takes away the basis of the
judgment (as opposed to merely invalidating it) is permissible
and does not constitute a violation of the separation doctrine.
That indeed is the basis on which validating legislation is
permitted.”597

Where a final judgment or order of this Court is sought to be undone by an Act

of Parliament, it is imperative that the basis of the Court’s judgment or order is

removed. It has been held by this Court in
Bhubaneshwar Singh v Union of

India598
:

“11. From time to time controversy has arisen as to whether the
effect of judicial pronouncements of the High Court or the
Supreme Court can be wiped out by amending the legislation
with retrospective effect. Many such Amending Acts are called
Validating Acts, validating the action taken under the particular
enactments by removing the defect in the statute
retrospectively because of which the statute or the part of it had
been declared ultra vires. Such exercise has been held by this
Court as not to amount to encroachment on the judicial power
of the courts. The exercise of rendering ineffective the
judgments or orders of competent courts by changing the
very basis by legislation is a well-known device of
validating legislation. This Court has repeatedly pointed out

597 Ibid, at page 126
598 (1994) 6 SCC 77
PART K

that such validating legislation which removes the cause of the
invalidity cannot be considered to be an encroachment on
judicial power. At the same time, any action in exercise of
the power under any enactment which has been declared
to be invalid by a court cannot be made valid by a
Validating Act by merely saying so unless the defect which
has been pointed out by the court is removed with
retrospective effect. The validating legislation must remove
the cause of invalidity. Till such defect or the lack of
authority pointed out by the court under a statute is
removed by the subsequent enactment with retrospective
effect, the binding nature of the judgment of the court
cannot be ignored.”599 (Emphasis supplied)

When the Aadhaar Act was notified on 25 March 2016, the interim directions

issued by this court were in operation. Was it then open to government to

launch upon a virtual spree of administrative notifications making Aadhaar a

mandatory requirement of virtually every aspect of human existence from birth

until death?

The position which the Union government has adopted before this court is

simply this: interim directions were issued by this court when the Aadhaar

project was governed by executive instructions. Once a law was enacted by

Parliament, a statutory authorisation was brought into existence to enable

government to issue administrative instructions. Hence, compliance with the

interim orders stands obviated upon the enactment of the law.

334 This defence of government can be scrutinized at two levels – the first

as a matter of statutory interpretation and the second, on a broader

foundation which engages the judicial power of this court. As a matter of
599 Ibid at pages 83-84
PART K

statutory interpretation, the Aadhaar Act did not, as it could not have, merely

nullified the interim orders of this court.
Section 59
has no provision which

gives it overriding effect notwithstanding any judgment, decree or order of a

court. The interim orders do not stand superseded. Apart from approaching

the issue purely as a matter of statutory interpretation, there are broader

concerns which arise from the manner in which the authorities proceeded,

oblivious to the interim directions. Interim directions were issued by this court

in a situation where a constitutional challenge was addressed in a batch of

petitions on the ground that the Aadhaar project was offensive to fundamental

rights, including the right to privacy. So significant was the nature of the

challenge that it was referred initially to a Constitution Bench and thereafter,

to a bench of nine-judges of this Court for resolving the question as to

whether privacy is a protected fundamental right. The collection and storage

of biometric data and its use for the purpose of authentication is the subject of

a constitutional challenge. Noting the nature of the challenge and after

considering the serious issues which have arisen in the case, successive

benches of this Court issued a series of interim directions. The purport of

those directions is that Aadhaar could not be made mandatory except for

specified schemes which were listed by the court. Moreover, in the context of

the serious grievance of financial exclusion, the court directed that no

individual should be excluded from the receipt of welfare entitlements, such as

food-grains, for want of an Aadhaar number. The constitutional challenge was

not obviated merely on the enactment of the Aadhaar Act. The law gave a
PART K

statutory character to a project which since 2009 was possessed of an

administrative or executive nature. The constitutional challenge to some of the

basic features underlying the collection of biometric data still remained to be

addressed by the court. The proceedings before this Court are testimony to

the fact that the issue of constitutionality was indeed live. That being the

position, the issuance of a spate of administrative notifications is in defiance

of the interim orders passed by this Court. Judicial orders, be they interim or

final, cannot simply be wished away. If governments or citizens were allowed

to ignore judicially enforceable directions, that would negate the basis of the

rule of law. Both propriety and constitutional duty required Union government

to move this Court after the enactment of the Aadhaar Act for variation of the

interim orders. Such an application would have required this Court to weigh

on the one hand the subsequent development of the law being passed

(something which would be relied upon by government) with the constitutional

concerns over the entire biometric project. It is not as if that the mere

enactment of the law put an end to the constitutional challenge. The existence

of law (post 2016) is only one aspect to be considered in deciding the interim

arrangement which would hold the field when the constitutional challenge was

pending adjudication before this Court. Institutions of governance are bound

by a sense of constitutional morality which requires them to abide by judicial

orders. What seems to emerge from the course of action which has been

followed in the present case by government is a perception that judicial

directions can be ignored on a supposed construction of the statute. Besides
PART K

the fact that this construction is erroneous in law, it is above all, the

fundamental duty of this Court to ensure that its orders are not treated with

disdain. If we were not to enforce a punctilious compliance with our own

directions by government, that would ring a death – knell of the institutional

position of the Supreme Court. If governments were free to ignore judicial

directions at will, could a different yardstick be applied to citizens?
The

obligation to comply with judicial orders is universal to our polity and admits of

no exception. Confronted with a brazen disregard of our interim orders, I

believe that we have no course open except to stand firm.

335 The power of judicial review conferred on an independent judiciary

requires that other organs of the State respect the authority of Courts. This

Court in
P Sambamurthy v State of Andhra Pradesh600
, while highlighting

the importance of judicial review in the rule of law regime, held thus:

“4… it is a basic principle of the rule of law that the exercise
of power by the executive or any other authority must not only
be conditioned by the Constitution but must also be in
accordance with law and the power of judicial review is
conferred by the Constitution with view to ensuring that the
law is observed and there is compliance with the requirement
of law on the part of the executive and other authorities. It is
through the power of judicial review conferred on an
independent institutional authority such as the High Court that
the rule of law is maintained and every organ of the State is
kept within the limits- of the law. Now if the exercise of the
power of judicial review can be set at naught by the State
Government by overriding the decision given against it, it
would sound, the death-knell of the rule of law. The rule
of law would cease to have any meaning, because then it
would be open to the State Government to defy the law
and yet get away with it.”601 (Emphasis supplied)

600 (1987) 1 SCC 362
601 Ibid, at page 369
PART K

336 A Bench of two judges in Re: Arundhati Roy602 held that for the courts

to protect the rule of law, it is necessary that the dignity and authority of the

courts have to be respected and protected. It was held:

“‘Rule of Law’ is the basic rule of governance of any civilised
democratic policy. Our Constitutional scheme is based upon
the concept of Rule of Law which we have adopted and given
to ourselves. Everyone, whether individually or collectively is
unquestionably under the supremacy of law. Whoever the
person may be, however high he or she is, no-one is above
the law notwithstanding how powerful and how rich he or she
may be. For achieving the establishment of the rule of
law, the Constitution has assigned the special task to the
judiciary in the country. It is only through the courts that
the rule of law unfolds its contents and establishes its
concept. For the judiciary to perform its duties and
functions effectively and true to the spirit with which it is
sacredly entrusted, the dignity and authority of the
courts have to be respected and protected at all costs.”603
(Emphasis supplied)

The accountability of power, as a component of the rule of law, requires that

the power vested in any organ of the State, and its agents, can only be used

for promotion of constitutional values and vision.604 Governmental authority

may only be exercised in accordance with written laws which are adopted

though an established procedure. No action of the legislature or the executive

can undermine the authority of the courts, except according to established

principles. Disrespect of court orders results in impairment of the dignity of the

courts.

602 (2002) 3 SCC 343
603 Ibid, at page 346
Nandini Sundar v State of Chhattisgarh
, (2011) 7 SCC 547
PART K

337 Constitutional morality requires a government not to act in a manner

which would become violative of the rule of law.605 Constitutional morality

requires that the orders of this Court be complied with, faithfully. This Court is

the ultimate custodian of the Constitution. The limits set by the Constitution

are enforced by this Court. Constitutional morality requires that the faith of the

citizens in the constitutional courts of the country be maintained. The

importance of the existence of courts in the eyes of citizens has been

highlighted in Harper Lee’s classic “To Kill a Mockingbird”:

“But there is one way in this country in which all men are
created equal—there is one human institution that makes a
pauper the equal of a Rockefeller, the stupid man the equal of
an Einstein, and the ignorant man the equal of any college
president. That institution, gentlemen, is a court. It can be
the Supreme Court of the United States or the humblest J.P.
court in the land, or this honorable court which you serve. Our
courts have their faults, as does any human institution, but in
this country our courts are the great levelers, and in our
courts all men are created equal.” (Emphasis supplied)

Many citizens, although aggrieved, are not in a condition to reach the highest

Court. The poorest and socially neglected lack resources and awareness to

reach this Court. Their grievances remain unaddressed. Such individuals

suffer injury each day without remedy. Disobedience of the interim orders of

this Court and its institutional authority, in the present case, has made a

societal impact. It has also resulted in denial of subsidies and other benefits

essential to the existence of a common citizen. Constitutional morality

therefore needs to be enforced as a valid response to these arbitrary acts.

Non-compliance of the interim orders of this Court is contrary to constitutional
Manoj Narula v Union of India
, (2014) 9 SCC 1
PART K

morality. Constitutional morality, as an essential component of the rule of law,

must neutralise the excesses of power by the executive. The brazen manner

in which notifications have been issued making Aadhaar mandatory, despite

the interim order of this Court is a matter of serious concern. Deference to the

institutional authority of the Supreme Court is integral to the values which the

Constitution adopts. The postulate of a limited government is enforced by the

role of the Supreme Court in protecting the liberties of citizens and holding

government accountable for its transgressions. The authority of this Court is

crucial to maintaining the fine balances of power on which democracy thrives

and survives. The orders of the Court are not recommendatory – they are

binding directions of a constitutional adjudicator. Dilution of the institutional

prestige of this Court can only be at the cost of endangering the freedom of

over a billion citizens which judicial review seeks to safeguard.

338 Courts – as it is often said- have neither the power of the purse nor the

sword. Our authority lies in constitutional legitimacy as much as in public

confidence. Combined together they impart moral and institutional authority to

the Court. That sense of legitimacy and duty have required me to assert once

again the norms of a written Constitution and the rule of law. This judgment

has taken a much wider postulation. Having held the Aadhaar Act prior to its

passage not to be a Money Bill, I have delved into the merits of the

constitutional challenge for two reasons:
PART L

i. Merits have been argued in considerable detail both by petitioners and the

Union of India; and

ii. As a logical consequence of the view that the Aadhaar legislation is not a

Money Bill, it would be open to the government to reintroduce fresh

legislation. The principles governing a law regulating the right to data

protection and informational privacy have hence been delineated.

L Conclusion

339 The present dispute has required this Court to analyze the provisions of

the Aadhaar Act and Regulations, along with the framework as it existed prior

to the enactment of the Act, through the prism of the Constitution and the

precedents of this Court. My conclusions are outlined below:

(1) In order to deal with the challenge that the Aadhaar Act should not have

been passed as a Money Bill, this Court was required to adjudicate

whether the decision of the Speaker of the Lok Sabha to certify a Bill as a

Money Bill, can be subject to judicial review. The judgment has analyzed

the scope of the finality attributed to the Speaker’s decision, by looking at

the history of
Article 110(3)
of the Constitution, by comparing it with the

comparative constitutional practices which accord finality to the Speaker’s

decision, by analyzing other constitutional provisions which use the phrase
PART L

“shall be final”, and by examining the protection granted to parliamentary

proceedings under
Article 122.
This judgment holds that:

(a) The phrase “shall be final” used under
Article 110(3)
aims at avoiding

any controversy on the issue as to whether a Bill is a Money Bill, with

respect to the Rajya Sabha and before the President. The language

used in
Article 110(3)
does not exclude judicial review of the Speaker’s

decision. This also applies to
Article 199(3).

(b) The immunity from judicial review provided to parliamentary

proceedings under
Article 122
is limited to instances involving

“irregularity of procedure”. The decisions of this Court in Special

Reference, Ramdas Athawale and Raja Ram Pal hold that the validity

of proceedings in Parliament or a State Legislature can be subject to

judicial review when there is a substantive illegality or a constitutional

violation. These judgments make it clear that the decision of the

Speaker is subject to judicial review, if it suffers from illegality or from a

violation of constitutional provisions.

(c)
Article 255
has no relation with the decision of the Speaker on whether

a Bill is a Money Bill. The three Judge Bench decision in Mohd Saeed

Siddiqui erroneously interpreted the judgment in Mangalore Beedi to

apply
Articles 212 (or
Article 122
)
and
to refrain from questioning

the conduct of the Speaker (under
Article 199
or 110). The two judge
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Bench decision in Yogendra Kumar followed Mohd Saeed Siddiqui.

The correct position of law is that the decision of the Speaker under

Articles 110(3)
and
199(3)
is not immune from judicial review. The

decisions in Mohd Saeed Siddiqui and Yogendra Kumar are

accordingly overruled.

(d) The existence of and the role of the Rajya Sabha, as an institution of

federal bicameralism in the Indian Parliament, constitutes a part of the

basic structure of the Constitution. The decision of the Speaker of the

Lok Sabha to certify a Bill as a Money Bill has a direct impact on the

role of the Rajya Sabha, since the latter has a limited role in the passing

of a Money Bill. A decision of the Speaker of the Lok Sabha to declare

an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha.

The power of the Speaker cannot be exercised arbitrarily in violation of

constitutional norms and values, as it damages the essence of federal

bicameralism, which is a part of the basic structure of the Constitution.

Judicial review of the Speaker’s decision, on whether a Bill is a Money

Bill, is therefore necessary to protect the basic structure of the

Constitution.

(2) To be certified a Money Bill, a Bill must contain “only provisions” dealing

with every or any one of the matters set out in sub-clauses (a) to (g) of

Article 110(1).
A Bill, which has both provisions which fall within sub-

clauses (a) to (g) of
Article 110(1)
and provisions which fall outside their
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scope, will not qualify to be a Money Bill. Thus, when a Bill which has

been passed as a Money Bill has certain provisions which fall beyond the

scope of sub-clauses (a) to (g) of
Article 110(1)
, these provisions cannot

be severed. If the bill was not a Money Bill, the role of the Rajya Sabha in

its legislative passage could not have been denuded. The debasement of

a constitutional institution cannot be countenanced by the Court.

Democracy survives when constitutional institutions are vibrant.

(3) The Aadhaar Act creates a statutory framework for obtaining a unique

identity number, which is capable of being used for “any” purpose, among

which availing benefits, subsidies and services, for which expenses are

incurred from the Consolidated Fund of India, is just one purpose provided

under
Section 7
. Clause (e) of
Article 110(1)
requires that a Money Bill

must deal with the declaring of any expenditure to be expenditure charged

on the Consolidated Fund of India (or increasing the amount of the

expenditure).
Section 7
fails to fulfil this requirement.
Section 7
does not

declare the expenditure incurred to be a charge on the Consolidated

Fund. It only provides that in the case of such services, benefits or

subsidies, Aadhaar can be made mandatory to avail of them. Moreover,

provisions other than
Section 7
of the Act deal with several aspects

relating to the Aadhaar numbers: enrolment on the basis of demographic

and biometric information, generation of Aadhaar numbers, obtaining the

consent of individuals before collecting their individual information,
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creation of a statutory authority to implement and supervise the process,

protection of information collected during the process, disclosure of

information in certain circumstances, creation of offences and penalties for

disclosure or loss of information, and the use of the Aadhaar number for

“any purpose”. All these provisions of the Aadhaar Act do not lie within the

scope of sub-clauses (a) to (g) of
Article 110(1).
Hence, in the alternate,

even if it is held that
Section 7
bears a nexus to the expenditure incurred

from the Consolidated Fund of India, the other provisions of the Act fail to

fall within the domain of
Article 110(1).
Thus, the Aadhaar Act is declared

unconstitutional for failing to meet the necessary requirements to have

been certified as a Money Bill under
Article 110(1).

(4) The argument that the Aadhaar Act is in pith and substance a Money Bill,

with its main objective being the delivery of subsidies, benefits and

services flowing out of the Consolidated Fund of India and that the other

provisions are ancillary to the main purpose of the Act also holds no

ground, since the doctrine of pith and substance is used to examine

whether the legislature has the competence to enact a law with regard to

any of the three Lists in the Seventh Schedule of the Constitution. The

doctrine cannot be invoked to declare whether a Bill satisfies the

requirements set out in
Article 110
of the Constitution to be certified a

Money Bill. The argument of the Union of India misses the point that a Bill
PART L

can be certified as a Money Bill “only” if it deals with all or any of the

matters contained in clauses (a) to (g) of
Article 110(1).

(5) Having held that the Aadhaar Act is unconstitutional for having been

passed as a Money Bill this judgment has also analysed the merits of the

other constitutional challenges to the legislation as well as to the

framework of the project before the law was enacted.

(6) The architecture of the Aadhaar Act seeks to create a unique identity for

residents on the basis of their demographic and biometric information.
The

Act
sets up a process of identification by which the unique identity

assigned to each individual is verified with the demographic and biometric

information pertaining to that individual which is stored in a centralised

repository of data. Identification of beneficiaries is integral and essential to

the fulfilment of social welfare schemes and programmes, which are a part

of the State’s attempts to ensure that its citizens have access to basic

human facilities. This judgment accepts the contention of the Union of

India that there is a legitimate state aim in maintaining a system of

identification to ensure that the welfare benefits provided by the State

reach the beneficiaries who are entitled, without diversion.

(7) The Aadhaar programme involves application of biometric technology,

which uses an individual’s biometric data as the basis of authentication or

identification and is therefore intimately connected to the individual. While
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citizens have privacy interests in personal or private information collected

about them, the unique nature of biometric data distinguishes it from other

personal data, compounding concerns regarding privacy protections

safeguarding biometric information. Once a biometric system is

compromised, it is compromised forever. Therefore, it is imperative that

concerns about protecting privacy must be addressed while developing a

biometric system. Adequate norms must be laid down for each step from

the collection to retention of biometric data. At the time of collection,

individuals must be informed about the collection procedure, the intended

purpose of the collection, the reason why the particular data set is

requested and who will have access to their data. Additionally, the

retention period must be justified and individuals must be given the right to

access, correct and delete their data at any point in time, a procedure

familiar to an opt-out option.

(8) Prior to the enactment of the Aadhaar Act, no mandatory obligation was

imposed upon the Registrars or the enrolling agencies, to obtain informed

consent from residents before recording their biometric data, to inform

them how the biometric data would be stored and used and about the

existence of adequate safeguards to secure the data. Moreover, prior to

the enactment of the Act, while UIDAI had itself contemplated that an

identity theft could occur at the time of enrollment for Aadhaar cards, it
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had no solution to the possible harms which could result after the identity

theft of a person.

(9) The Regulations framed subsequently under the Aadhaar Act also do not

provide a robust mechanism on how informed consent is to be obtained

from residents before collecting their biometric data. The Aadhaar Act and

Regulations are bereft of the procedure through which an individual can

access information related to his or her authentication record. The

Aadhaar Act clearly has no defined options that should be made available

to the Aadhaar number holders in case they do not wish to submit identity

information during authentication, nor do the regulations specify the

procedure to be followed in case the Aadhaar number holder does not

provide consent for authentication.

(10)
Sections 29(1)
and (2) of the Act create a distinction between two classes

of information (core biometric information and identity information), which

are integral to individual identity and require equal protection.
Section

29(4)
suffers from overbreadth as it gives wide discretionary power to

UIDAI to publish, display or post core biometric information of an individual

for purposes specified by the regulations.

(11)
Sections 2(g)
, (j), (k) and (t) suffer from overbreadth, as these can lead to

an invasive collection of biological attributes. These provisions give
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discretionary power to UIDAI to define the scope of biometric and

demographic information and empower it to expand on the nature of

information already collected at the time of enrollment, to the extent of

also collecting any “such other biological attributes” that it may deem fit.

(12) There is no clarity on how an individual is supposed to update his/her

biometric information, in case the biometric information mismatches with

the data stored in CIDR. The proviso to Section 28(5) of the Aadhaar Act,

which disallows an individual access to the biometric information that

forms the core of his or her unique ID, is violative of a fundamental

principle that ownership of an individual’s data must at all times vest with

the individual. UIDAI is also provided wide powers in relation to removing

the biometric locking of residents. With this analysis of the measures

taken by the Government of India prior to the enactment of the Aadhaar

Act as well as a detailed analysis of the provisions under the
Aadhaar Act,
and supporting Regulations made under it, this judgment concludes

that the Aadhaar programme violates essential norms pertaining to

informational privacy, self-determination and data protection.

(13) The State is under a constitutional obligation to safeguard the dignity of

its citizens. Biometric technology which is the core of the Aadhaar

programme is probabilistic in nature, leading to authentication failures.

These authentication failures have led to the denial of rights and legal
PART L

entitlements. The Aadhaar project has failed to account for and remedy

the flaws in its framework and design which has led to serious instances

of exclusion of eligible beneficiaries as demonstrated by the official

figures from Government records including the Economic Survey of India

2016-17 and research studies. Dignity and the rights of individuals cannot

be made to depend on algorithms or probabilities. Constitutional

guarantees cannot be subject to the vicissitudes of technology. Denial of

benefits arising out of any social security scheme which promotes socio-

economic rights of citizens is violative of human dignity and impermissible

under our constitutional scheme.

(14) The violations of fundamental rights resulting from the Aadhaar scheme

were tested on the touchstone of proportionality. The measures adopted

by the respondents fail to satisfy the test of necessity and proportionality

for the following reasons:

(a) Under the Aadhaar project, requesting entities can hold the identity

information of individuals, for a temporary period. It was admitted by

UIDAI that AUAs may store additional information according to their

requirement to secure their system. ASAs have also been permitted to

store logs of authentication transactions for a specific time period. It has

been admitted by UIDAI that it gets the AUA code, ASA code, unique

device code and the registered device code used for authentication,

and that UIDAI would know from which device the authentication took
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place and through which AUA/ASA. Under the Regulations, UIDAI

further stores the authentication transaction data. This is in violation of

widely recognized data minimisation principles which mandate that data

collectors and processors delete personal data records when the

purpose for which it has been collected is fulfilled. Moreover, using the

meta-data related to the transaction, the location of the authentication

can easily be traced using the IP address, which impacts upon the

privacy of the individual.

(b) From the verification log, it is possible to locate the places of

transactions by an individual in the past five years. It is also possible

through the Aadhaar database to track the current location of an

individual, even without the verification log. The architecture of Aadhaar

poses a risk of potential surveillance activities through the Aadhaar

database. Any leakage in the verification log poses an additional risk of

an individual’s biometric data being vulnerable to unauthorised

exploitation by third parties.

(c) The biometric database in the CIDR is accessible to third-party vendors

providing biometric search and de-duplication algorithms, since neither

the Central Government nor UIDAI have the source code for the de-

duplication technology which is at the heart of the programme. The

source code belongs to a foreign corporation. UIDAI is merely a

licensee. Prior to the enactment of the Aadhaar Act, without the consent
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of individual citizens, UIDAI contracted with L-1 Identity Solutions (the

foreign entity which provided the source code for biometric storage) to

provide to it any personal information related to any resident of India.

This is contrary to the basic requirement that an individual has the right

to protect herself by maintaining control over personal information. The

protection of the data of 1.2 billion citizens is a question of national

security and cannot be subjected to the mere terms and conditions of a

normal contract.

(d) Before the enactment of the Aadhaar Act, MOUs signed between UIDAI

and Registrars were not contracts within the purview of
Article 299
of

the Constitution, and therefore, do not cover the acts done by the

private entities engaged by the Registrars for enrolment. Since there is

no privity of contract between UIDAI and the Enrolling agencies, the

activities of the private parties engaged in the process of enrolment

before the enactment of the Aadhaar Act have no statutory or legal

backing.

(e) Under the Aadhaar architecture, UIDAI is the sole authority which

carries out all administrative, adjudicatory, investigative, and monitoring

functions of the project.
While the Act
confers these functions on UIDAI,

it does not place any institutional accountability upon UIDAI to protect

the database of citizens’ personal information. UIDAI also takes no

institutional responsibility for verifying whether the data entered and
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stored in the CIDR is correct and authentic. The task has been

delegated to the enrolment agency or the Registrar. Verification of data

being entered in the CIDR is a highly sensitive task for which the UIDAI

ought to have taken responsibility. The Aadhaar Act is also silent on the

liability of UIDAI and its personnel in case of their non-compliance of

the provisions of the Act or the regulations.

(f)
Section 47
of the Act violates citizens’ right to seek remedies. Under

Section 47(1)
, a court can take cognizance of an offence punishable

under the Act only on a complaint made by UIDAI or any officer or

person authorised by it.
Section 47
is arbitrary as it fails to provide a

mechanism to individuals to seek efficacious remedies for violation of

their right to privacy. Further,
Section 23(2)(s)
of the Act requires UIDAI

to establish a grievance redressal mechanism. Making the authority

which is administering a project, also responsible for providing a

grievance redressal mechanism for grievances arising from the project

severely compromises the independence of the grievance redressal

body.

(g)
While the Act
creates a regime of criminal offences and penalties, the

absence of an independent regulatory framework renders the Act

largely ineffective in dealing with data violations. The architecture of

Aadhaar ought to have, but has failed to embody within the law the

establishment of an independent monitoring authority (with a hierarchy
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of regulators), along with the broad principles for data protection. This

compromise in the independence of the grievance redressal body

impacts upon the possibility and quality of justice being delivered to

citizens. In the absence of an independent regulatory and monitoring

framework which provides robust safeguards for data protection, the

Aadhaar Act cannot pass muster against a challenge on the ground of

reasonableness under
Article 14.

(h) No substantive provisions, such as those providing data minimization,

have been laid down as guiding principles for the oversight mechanism

provided under
Section 33(2)
, which permits disclosure of identity

information and authentication records in the interest of national

security.

(i) Allowing private entities to use Aadhaar numbers, under
Section 57
, will

lead to commercial exploitation of the personal data of individuals

without consent and could also lead to individual profiling. Profiling

could be used to predict the emergence of future choices and

preferences of individuals. These preferences could also be used to

influence the decision making of the electorate in choosing candidates

for electoral offices. This is contrary to privacy protection norms. Data

cannot be used for any purpose other than those that have been

approved. While developing an identification system of the magnitude

of Aadhaar, security concerns relating to the data of 1.2 billion citizens
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ought to be addressed. These issues have not been dealt with by the

Aadhaar Act. By failing to protect the constitutional rights of citizens,

Section 57
violates
Articles 14
and
21.

(j)
Section 57
is susceptible to be applied to permit commercial

exploitation of the data of individuals or to affect their behavioural

patterns.
Section 57
cannot pass constitutional muster. Since it is

manifestly arbitrary, it suffers from overbreadth and violates
Article 14.

(k)
Section 7
suffers from overbreadth since the broad definitions of the

expressions ‘services and ‘benefits’ enable the government to regulate

almost every facet of its engagement with citizens under the Aadhaar

platform. If the requirement of Aadhaar is made mandatory for every

benefit or service which the government provides, it is impossible to live

in contemporary India without Aadhaar. The inclusion of services and

benefits in
Section 7
is a pre-cursor to the kind of function creep which

is inconsistent with the right to informational self-determination.
Section
is therefore arbitrary and violative of
Article 14
in relation to the

inclusion of services and benefits as defined.

(l) The legitimate aim of the State can be fulfilled by adopting less intrusive

measures as opposed to the mandatory enforcement of the Aadhaar

scheme as the sole repository of identification. The State has failed to

demonstrate that a less intrusive measure other than biometric
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authentication would not subserve its purposes. That the state has

been able to insist on an adherence to the Aadhaar scheme without

exception is a result of the overbreadth of
Section 7
.

(m) When Aadhaar is seeded into every database, it becomes a bridge

across discreet data silos, which allows anyone with access to this

information to re-construct a profile of an individual’s life. This is

contrary to the right to privacy and poses severe threats due to potential

surveillance.

(n) One right cannot be taken away at the behest of the other. The State

has failed to satisfy this Court that the targeted delivery of subsidies

which animate the right to life entails a necessary sacrifice of the right

to individual autonomy, data protection and dignity when both these

rights are protected by the Constitution.

(15) Section 59 of the Aadhaar Act seeks to retrospectively validate the

actions of the Central Government done prior to the Aadhaar Act

pursuant to Notifications dated 28 January 2009. and 12 September

2015.
Section 59
does not validate actions of the state governments or of

private entities. Moreover, the notification of 2009 did not authorise the

collection of biometric data. Consequently, the validation of actions taken

under the 2009 notification by
Section 59
does not save the collection of

biometric data prior to the enforcement of the Act. While Parliament
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possesses the competence to enact a validating law, it must cure the

cause of infirmity or invalidity.
Section 59
fails to cure the cause of

invalidity prior to the enactment of the Aadhaar Act. The absence of a

legislative framework for the Aadhaar project between 2009 and 2016 left

the biometric data of millions of Indian citizens bereft of the kind of

protection which must be provided to comprehensively protect and

enforce the right to privacy.
Section 59
therefore fails to meet the test of

a validating law since the complete absence of a regulatory framework

and safeguards cannot be cured merely by validating what was done

under the notifications of 2009 and 2016.

(16) The decision in Puttaswamy recognised that revenue constitutes a

legitimate state aim in the three-pronged test of proportionality. However,

the existence of a legitimate aim is insufficient to uphold the validity of the

law, which must also meet the other parameters of proportionality spelt out

in Puttaswamy.

(17) The seeding of Aadhaar with PAN cards depends on the constitutional

validity of the Aadhaar legislation itself.
Section 139AA
of the Income Tax

Act 1962 is based on the premise that the Aadhaar Act itself is a valid

legislation. Since the Aadhaar Act itself is now held to be unconstitutional

for having been enacted as a Money Bill and on the touchstone of

proportionality, the seeding of Aadhaar to PAN under Article 139AA does

not stand independently.
PART L

(18) The 2017 amendments to the PMLA Rules fail to satisfy the test of

proportionality. The imposition of a uniform requirement of linking Aadhaar

numbers with all account based relationships proceeds on the

presumption that all existing account holders as well as every individual

who seeks to open an account in future is a potential money-launderer. No

distinction has been made in the degree of imposition based on the client,

the nature of the business relationship, the nature and value of the

transactions or the actual possibility of terrorism and money- laundering.

The rules also fail to make a distinction between opening an account and

operating an account. Moreover, the consequences of the failure to submit

an Aadhaar number are draconian. In their present form, the rules are

clearly disproportionate and excessive. We clarify that this holding would

not preclude the Union Government in the exercise of its rule making

power and the Reserve Bank of India as the regulator to re-design the

requirements in a manner that would ensure due fulfillment of the object of

preventing money-laundering, subject to compliance with the principles of

proportionality as outlined in this judgment.

(19) Mobile phones have become a ubiquitous feature of the lives of people

and the linking of Aadhaar numbers with SIM cards and the requirement of

e-KYC authentication of mobile subscribers must necessarily be viewed in

this light. Applying the proportionality test, the legitimate aim of subscriber

verification, has to be balanced against the countervailing requirements of
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preserving the integrity of biometric data and the privacy of mobile phone

subscribers. Mobile phones are a storehouse of personal data and reflect

upon individual preferences, lifestyle and choices. The conflation of

biometric information with SIM cards poses grave threats to individual

privacy, liberty and autonomy. Having due regard to the test of

proportionality which has been propounded in Puttaswamy and as

elaborated in this judgment, the decision to link Aadhaar numbers with

mobile SIM cards is neither valid nor constitutional. The mere existence of

a legitimate state aim will not justify the disproportionate means which

have been adopted in the present case. The biometric information and

Aadhaar details collected by Telecom Service Providers shall be deleted

forthwith and no use of the said information or details shall be made by

TSPs or any agency or person or their behalf.

(20) Defiance of judicial orders (both interim and final) be it by the government

or by citizens negates the basis of the rule of law. Both propriety and

constitutional duty required the Union government to move this Court after

the enactment of the Aadhaar Act for variation of this Court’s interim

orders. Institutions of governance are bound by a sense of constitutional

morality which requires them to abide by judicial orders.

(21) Identity is necessarily a plural concept. The Constitution also recognizes

a multitude of identities through the plethora of rights that it safeguards.
PART L

The technology deployed in the Aadhaar scheme reduces different

constitutional identities into a single identity of a 12-digit number and

infringes the right of an individual to identify herself/himself through a

chosen means. Aadhaar is about identification and is an instrument which

facilitates a proof of identity. It must not be allowed to obliterate

constitutional identity.

(22) The entire Aadhaar programme, since 2009, suffers from constitutional

infirmities and violations of fundamental rights. The enactment of the

Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the

Rules and Regulations framed under it, and the framework prior to the

enactment of the Act are unconstitutional.

(23) To enable the government to initiate steps for ensuring conformity with

this judgment, it is directed under
Article 142
that the existing data which

has been collected shall not be destroyed for a period of one year. During

this period, the data shall not be used for any purpose whatsoever. At the

end of one year, if no fresh legislation has been enacted by the Union

government in conformity with the principles which have been enunciated

in this judgment, the data shall be destroyed.

Creating strong privacy protection laws and instilling safeguards may address

or at the very least assuage some of the concerns associated with the

Aadhaar scheme which severely impairs informational self-determination,
PART L

individual privacy, dignity and autonomy. In order to uphold the democratic

values of the Constitution, the government needs to address the concerns

highlighted in this judgment which would provide a strong foundation for digital

initiatives, which are imminent in today’s digital age. However, in its current

form, the Aadhaar framework does not sufficiently assuage the concerns that

have arisen from the operation of the project which have been discussed in

this judgment.

……....................................................J
[Dr Dhananjaya Y Chandrachud]

New Delhi;

September 26, 2018.
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 494 OF 2012

JUSTICE K.S.PUTTASWAMY (RETD.) AND ANR. ...PETITIONERS

VERSUS

UNION OF INDIA AND ORS.    ... RESPONDENTS

WITH

T.C.(C)   No.151/2013,   T.C.(C)   No.152/2013,   W.P.(C)
No.833/2013 (PIL­W), W.P.(C) No.829/2013 (PIL­W), T.P.
(C) No.1797/2013, W.P.(C) No.932/2013 (PIL­W), T.P.(C)
No.1796/2013,   CONMT.   PET.(C)   No.144/2014   In   W.P.(C)
No.494/2012   (PIL­W),   T.P.(C)   No.313/2014,   T.P.(C)
No.312/2014,   SLP(Crl.)   No.2524/2014,   W.P.(C)
No.37/2015   (PIL­W),   W.P.(C)   No.220/2015   (PIL­W),
CONMT.   PET.(C)   No.674/2015   In   W.P.(C)   No.829/2013
(PIL­W),   T.P.(C)   No.921/2015,   CONMT.   PET.(C)
No.470/2015   In   W.P.(C)   No.494/2012   (PIL­W),   W.P.(C)
No.231/2016   (PIL­W),   CONMT.   PET.(C)   No.444/2016   In
W.P.(C)   No.494/2012   (PIL­W),   CONMT.   PET.(C)
No.608/2016   In   W.P.(C)   No.494/2012   (PIL­W),   W.P.(C)
No.797/2016     (PIL­W),   CONMT.   PET.(C)   No.844/2017   In
W.P.(C) No.494/2012 (PIL­W), W.P.(C) No.342/2017 (PIL­
W),   W.P.(C)   No.372/2017,   W.P.(C)   No.841/2017,   W.P.(C)
No.1058/2017   (PIL­W),   W.P.(C)   No.966/2017   (PIL­W),
W.P.(C)   No.   1014/2017   (PIL­W),   W.P.   (C)   No.1002/2017
(PIL­W),   W.P.(C)   No.1056/2017   and   CONMT.   PET.(C)
No.34/2018 in W.P.(C) No.1014/2017 (PIL­W)

J U D G M E N T

ASHOK BHUSHAN, J.

The   challenge   in   this   batch   of   cases   can   be
divided   in   two   parts,   firstly,   the   challenge   to

Executive's   Scheme   dated   28.01.2009   notified   by   the

Government   of   India,   by   which   the   Unique

Identification   Authority   of   India   (hereinafter

referred   to   as   “UIDAI”)   was   constituted   to   implement

the   UIDAI   Scheme,   and   secondly   challenge   to
The

Aadhaar     (Targeted   Delivery   of   Financial   and   Other

Subsidies,   Benefits   and   Services)   Act,   2016

(hereinafter referred to as “Act, 2016”).

2. The group of cases can be divided into four broad

heads.     First   head   consists   of   the   sixteen   Writ

Petitions   filed   under
Article   32
of   the   Constitution

of   India   in   this   Court   challenging   the   notification

dated 28.01.2009 and/or the Act, 2016.

Second   group   consists   of   seven   Transfer

Cases/Transfer   petitions   to   be   heard   alongwith   Writ

Petitions filed under
Article 32.

Group   three   consists   of   only   one   Special   Leave

Petition   (Criminal)   No.   2524   of   2014   filed   by   UIDAI

and   Anr.     Fourth   group   consists   of   seven   Contempt
Petitions, which have been filed alleging violation of

the   interim   orders   passed   by   this   Court   in   Writ

Petitions and SLP (Criminal) as noted above.

3. Before   we   come   to   the   different   prayers   made   in

the   Writ   Petitions   wherein   Executive   Scheme   dated

28.01.2009   as   well   as   Act,   2016   has   been   challenged,

it is useful to notice certain background facts, which

lead   to   issuance   of   notification   dated   28.01.2009   as

well as the Act, 2016.

4. India   is   a   country,   which   caters   a   sea   of

population.     When   the   British   left   our   country   in

1947,   total   population   of   the   country   was   only   330

million,   which   has   rapidly   increased   into   enormous

figure   of   1.3   billion   as   on   date.
The   Citizenship

Act,   1955
was   enacted   by   the   Parliament   for   the

acquisition   and   determination   of   Indian   Citizenship.

Our   constitutional   framers   have   provided   for   adult

franchise to every adult citizens. Election Commission

of   India   had   taken   steps   to   provide   for   an   identity
card   to   each   person   to   enable   him   to   exercise   his

franchise.
The   Citizenship   Act,   1955
was   amended   by

the   Act   6   of   2004   whereas
Section   14A
was   inserted

providing   that   Central   Government   may   compulsorily

register   every   citizen   of   India   and   issue   national

identity card to him.   The Planning Commission of the

Government of India conceived a Unique Identification

Project   for   providing   a   Unique   Identity   Number   for

each resident across the country, which was initially

envisaged   primarily   as   the   basis   for   the   efficient

delivery of welfare services.

5. At   first,   in   the   year   2006,   administrative

approval was granted for the project “Unique Identity

for   BPL   Families”.   A   Process   Committee   was

constituted, which prepared a strategic vision on the

Unique Identification Project.   The Process Committee

furnished   a   detailed   proposal   to   the   Planning

Commission   in   the   above   regard.     The   Prime   Minister

approved   the   constitution   of   an   empowered   Group   of

Ministers   to   collate   the   two   spheres,   the   national
population   register   under   the
Citizenship   Act,   1955

and   the   Unique   Identification   Number   Project   of   the

Department   of   Information   Technology.     The   empowered

Group of Ministers recognised the need for creating an

identity related resident database and to establish an

institutional mechanism, which shall own the database

and   shall   be   responsible   for   its   maintenance   and

updations   on   ongoing   basis.   The   empowered   Group   of

Ministers   held   various   meetings   to   which   inputs   were

provided from different sources including Committee of

Secretaries.  The recommendation of empowered Group of

Ministers   to   constitute   Unique   Identification

Authority   of   India   (hereinafter   referred   to   as

“UIDAI”)   was   accepted   with   several   guidelines   laying

down the roles and responsibilities of the UIDAI. The

UIDAI   was   constituted   under   the   aegis   of   Planning

Commission   of   India.     The   Notification   dated

28.01.2009   was   issued   constituting   the   UIDAI,

providing   for   its   composition,   roles   and

responsibilities.
6. In   the   year   2010,   a   bill   namely   the   National

Identification Authority of India Bill, 2010 providing

for   the   establishment   of   the   National   Identification

Authority   of   India   for   the   purpose   of   issuing

identification   numbers   to   individuals   residing   in

India   and   to   certain   other   classes   of   individuals,

manner   of   authentication   of   such   individuals   to

facilitate   access   to   benefits   and   services   to   which

they are entitled and for matters connected therewith

or   incidental   thereto   was   introduced.     The   Bill   was

pending in the Parliament when the first Writ Petition

i.e. Writ Petition (C) No. 494 of 2012 – Justice K.S.

Puttaswamy   (Retd.)   &
Anr.   Vs.   Union   of   India   &   Ors.

Was
filed.     The   Writ   Petition   under
Article   32
was

filed   on   the   ground   that   fundamental   rights   of   the

innumerable citizens of India namely Right to Privacy

falling under
Article 21
of the Constitution of India

are adversely affected by the Executive action of the

Central   Government   proceeding   to   implement   an

Executive   order   dated   28.01.2009   and   thereby   issuing

Aadhaar   numbers   to   both   citizens   as   also   illegal
immigrants   presently   illegally   residing   in   the

country.     While   the   Bill   namely   “National

Identification   Authority   of   India   Bill,   2010”,   which

had   already   been   introduced   in   the   Rajya   Sabha   on

03.12.2010 and referred to the Standing Committee, had

been rejected.  The Writ Petition prayed for following

reliefs:­

(A) ISSUE   a   writ   in   the   nature   of   mandamus

restraining   the   respondents   Nos.   1  to   3

from   issuing   Aadhaar   Numbers   by   way   of
implementing   its   Executive   order   dated
28.01.2009   (Annexure   “P­1”)   which
tentamount to implementing the provisions
of the National Identification Authority
of   India   Bill,   2010   pending   before   the
Parliament until and unless the said Bill
is   considered   and   passed   by   the
Parliament   and   becomes   an   Act   of
Parliament.

(B) Pass   such   other   order/s   as   this   Hon'ble
Court   may   deem   fit   and   proper   in   the
circumstances of the case.

7. Writ   Petition   (C)   No.   829   of   2013   ­
Mr.   S.G.

Vombatkere & Anr. Vs. Union of India & Ors.
, was filed

by Mr. S.G. Vombatkere and Bezwada Wilson questioning

the UID Project and Aadhaar Scheme.   The  UID Project

and   Aadhaar   Scheme   were   contended   to   be   illegal   and
violative of fundamental rights. It was also contended

that   the   Scheme   has   no   legislative   sanction.   Various

other grounds for attacking the Scheme were enumerated

in   the   Writ   Petition.

Writ   Petition   (C)   No.   833   of

2013 –
Ms. Aruna Roy & Anr. Vs. Union of India & Ors.
,

was also filed challenging the UID Scheme. Other Writ

Petitions being Writ Petition (C) No. 932 of 2013 and

Writ   Petition   (C)   No.   37   of   2015   came   to   be   filed

challenging the UID Scheme.

8. S.G.   Vombatkere   and   Bezwada   Wilson   filed   another

Writ   Petition   (C)   No.   220   of   2015   challenging   the

exercise   of   preparation   of   the   National   Population

Register.
Section 14A
of the Citizenship Act, 1955 was

also   challenged   as   void   and   ultra   vires.   Petitioners

have referred to earlier Writ Petition (C) No. 829 of

2013   and   adopted   the   grounds already   raised   in   the

earlier   Writ   Petition.   Writ   petitioner   had   also

challenged   the   collection   of   confidential   biometric

informations,   which   is   neither   sanctioned   nor

authorised under any Act or Rules.
9. The   Parliament   enacted   the   Act,   2016,   which

contains following preamble:­

“
An Act
to provide for, as a good governance,
efficient, transparent, and targeted delivery
of   subsidies,   benefits   and   services,   the
expenditure   for   which   is   incurred   from   the
Consolidated   Fund   of   India,   to   individuals
residing in India through assigning of unique
identity numbers to such individuals and for
matters   connected   therewith   or   incidental
thereto.”

10. The Writ Petition (C) No. 231 of 2016­
Shri Jairam

Ramesh   Vs.   Union   of   India   &   Ors.
,   was   filed   by   Shri

Jairam   Ramesh seeking   a   direction   declaring   the   Act,

2016   as   unconstitutional,   null   and   void   and   ultra

vires.

Writ   Petition   (C)   No.   797   of   2016   ­
S.G.

Vombatkere & Ors. Vs. Union of India & Ors.
, was also

filed   by   S.G.   Vombatkere   and   Bezwada   Wilson

challenging   the   Act,   2016.   The   petitioners   have   also

referred to earlier Writ Petition (C) No. 829 of 2013

and   Writ   Petition   (C)   No.   220   of   2015.   The   writ

petitioners   alleged   various   grounds   for   challenging

the   Act,   2016.   Apart   from   seeking   a   direction   to

declare   the   Act,   2016   ultra   vires,   unconstitutional

and   null   and   void,   prayers   for   declaring   various
Sections of Act, 2016 as ultra vires, unconstitutional

and null and void were also made. The writ petitioners

claimed lots of reliefs from a to w, it is useful to

quote the reliefs a to d, which are to the following

effect:­

"a) Issue a Writ, order or direction in the
nature   of   Certiorari   or   any   other
appropriate   writ/order/direction
declaring   that   the
Aadhaar   (Targeted
Delivery   of   Financial   and   Other
Subsidies,   Benefits   and   Services)   Act,
is   ultra   vires,   unconstitutional,
null   and   void   and   in   particular   violate

Articles   14
,   19
and
of   the
Constitution of India;

b) Issue a Writ, order or direction in the
nature   of   Certiorari   or   any   other
appropriate   writ/order/direction
declaring that
sections 2(h)
,
2(l)
,
2(m)
,

2(v)
,
,
,
,
,
,
,
, Chapter IV,

Section 23
read with
Section 54
,
Section
,
Section   30
,
Section   33
,
Section   47
,

Section 57
and
Section 59
of the Aadhaar
(Targeted Delivery of Financial and Other
Subsidies,   Benefits   and   Services)   Act,
2016   are   ultra   vires,   unconstitutional,
null   and   void   and   in   particular   violate

Articles   14
,   19
,   20(3)
and
of   the
Constitution of India;

c) Issue a Writ, order or direction in the
nature   of   Certiorari   or   any   other
appropriate   writ/order/direction
declaring that the right to privacy is a
fundamental   right   guaranteed   under   Part
III of the Constitution of India;
d) Issue a Writ, order or direction in the
nature   of   Certiorari   or   any   other
appropriate   writ/order/direction
declaring that no person may be deprived
of   receiving any   financial   subsidy   or
other subsidy or benefit or services from
the   State   on   the   ground   that   he   or   she
does not have an Aadhaar number;”

11. Writ Petition (C) No. 342 of 2017 ­
Shantha Sinha

& Anr. Vs. Union of India & Anr. Was
filed challenging

the   Act,   2016.     Apart   from   seeking   a   direction   to

declare   various   Sections   of   Act,   2016   as   null   and

void,   writ   petitioners   also   prayed   for   a   direction

declaring
Sections 2(h)
,
2(l)
,
2(m)
,
2(v)
,
,
,
,
,
,
,
, Chapter IV,
Section 23
read with
Section 54
,

Section   29
,
Section   30
,
Section   33
,
Section   47
,

Section   57
and
Section   59
of   the   Act,   2016   as   ultra

vires,   unconstitutional   and   null   and   void.

Writ

Petition   (Civil)   NO.   372   of   2017   ­
Shankar   Prasad

Dangi Vs. Bharat Cooking Coal Limited & Another
,   was

filed   by   Shankar   Prasad   Dangi,   who   claims   to   be

employed   under   the   Bharat   Cooking   Coal   Limited.

Petitioner filed the writ petition seeking a mandamus

directing the respondents not to compel the petitioner
to   submit   the   Aadhaar   Card   copy.     The   petitioner

placed   reliance   on   Order   of   this   Court   dated

14.09.2016   in   Writ   Petition   (C)   No.   686   of   2016.

Writ Petition (C) No. 841 of 2017 has also been filed

by   State   of   West   Bengal   challenging   various

notifications issued under
Section 7
of the Act, 2016.

The petitioner also sought a direction declaring that

no person may be deprived of receiving any benefit or

services from the State on the ground that he or she

does not have an Aadhaar number or Aadhaar enrolment.

Writ Petition (C) No. 1058 of 2017 –
Mathew Thomas Vs.

Union of  India  &  Ors.
has been  filed  challenging the

Act,   2016.     The   writ   petitioner   also   prayed   for

declaring Prevention of Money Laundering Rules (Second

Amendment) 2017 as violative of
Articles 14
, 19
and
of the Constitution.
Section 139AA
of the Income Tax

Act, 1961 was also prayed to be declared as violative

of
Articles 14
, 19
and
of the Constitution.

12. Writ Petition (C) No. 966 of 2017 – Raghav Tankha

Vs.   Union of   India   through   its   Secretary   &   Ors.   has

been filed seeking following prayers:­
"a) Issue   a   Writ   of   Mandamus   or   any   other
appropriate   writ,   order   or   direction
under   Article   32   of   the   Constitution   of
India,   directing   the   Respondents   to
declare that Aadhaar is not mandatory for
the   purpose   of   authentication   while
obtaining a mobile connection; or the re­
verification   of   Subscribers,   being
completely   illegal,   arbitrary   and   mala
fide; and/or

b) Issue   a   Writ   of   Mandamus   or   any   other
appropriate   writ,   order   or   direction
under   Article   32   of   the   Constitution   of
India, directing the Respondents Number 2
to   6,   to   take   immediate   steps   in   the
present   situation,   for   restraining   and
banning   the   transfer   of   data   from   UIDAI
to Private Telecom Service Providers and
Aadhaar   being   made   the   only   option   of
authentication; and/or”

13. Writ   Petition   (C)   No.   1014   of   2017   –
M.G.

Devasahayam   and   Ors.   Vs.   Union   of   India   &   Anr.
has

been filed, where following prayers have been made:­

“a) This   Hon'ble   Court   may   be   pleased   to
issue   an   appropriate   writ,   order   or
direction   declaring   Rule   9   of   the
Prevention   of   Money   Laundering   Rules,
2017   as   amended   by   the   Prevention   of
Money   Laundering   (Second   Amendment)
Rules,   2017   as   ultra   vires,
unconstitutional,   null   and   void   and   in
particular violate
Articles 14
, 19
and
of the Constitution of India;

b) This   Hon'ble   Court   may   be   pleased   to
issue   an   appropriate   writ,   order   or
direction   declaring   that   bank   accounts
will not be denied or ceased on the basis
that he or she does not have an Aadhaar
number;

c) This   Hon'ble   Court   may   be   pleased   to
issue   an   appropriate   writ,   order   or
direction   in   the   nature   of   mandamus
against the Respondents directing them to
forthwith   forbear   from   implementing   or
acting   pursuant   to   or   in   implementation
of   Rule   9   of   the   Prevention   of   Money
Laundering Rules, 2017 as amended by the
Prevention   of   Money   Laundering   (Second
Amendment) Rules, 2017;

d) This   Hon'ble   Court   may   be   pleased   to
issue   an   appropriate   writ,   order   or
direction   in   the   nature   of   mandamus
against the Respondents directing them to
forthwith clarify by issuing appropriate
announcements,   circulars   and/or
directions   that   no   citizen   of   India   is
required   to   obtain   an   Aadhaar
number/Aadhaar card and that the program
under   the   Aadhaar   Act   is   entirely
voluntary even for opening or maintaining
the bank accounts and carrying financial
transactions;

e) This   Hon'ble   Court   may   be   pleased   to
award   costs   relating   to   the   present
petition to the petitioners; and

f) This   Hon'ble   Court   may   be   pleased   to
issue   any   other   writ/order/direction   in
the   nature   of   mandamus   as   this   Hon'ble
Court   may   deem   fit   an   proper   in   the
circumstances of the case.”

14.  Writ Petition (C) No. 1002 of 2017 –
Dr. Kalyani
Menon Sen Vs. Union of  India  and Others
,  also sought

declaration that Rule 2(b) of the Prevention of Money

Laundering   (Maintenance   of   Records)   Second   Amendment

Rules, 2017 is ultra vires.  Circular dated 23.03.2017

issued by the Department of Telecommunication was also

sought   to   be   declared   as   ultra   vires,

unconstitutional,   null   and   void.   A   further   direction

was   sought   declaring   that   pursuant   to   the   Circular

dated   23.03.2017,   the   mobile   phone   numbers   of

subscribers   will   not   be   made   in­operational,   and

future applicants will not be coerced to submit their

Aadhaar numbers.  Certain other reliefs have also been

claimed in the  writ petition.
Writ Petition  (C) No.

1056   of   2017   –   Nachiket   Udupa   &   Anr.   Vs.   Union   of

India & Ors. has been filed challenging the Act, 2016

and with other prayers, which is as follows:­

A. Issue   a   Writ   of   Declaration   and
Mandamus or any other appropriate Writ,
Direction,   Order   or   such   other
appropriate   remedy   to   declare   the

Aadhaar (Targeted Delivery of  Financial
and   Other   Subsidies,   Benefits  and
Services) Act, 2016
[ACT No. 18 of 2016]
as illegal and violative of
Articles 14
,
19(1)(a)
and
of   the   Constitution   of
India;
B. In  the   alternative   to   Prayer   (A),
issue   a   Writ   of   Declaration  and
Mandamus   or   any   other   appropriate
Writ,   Direction,  Order   or   such   other
appropriate   remedy   against   Respondent
No.   3   to   provide   'opt­out'   or   process
to   delete   identity  information   from
Central   Identities   Data   Repository   at
the option of Aadhaar Number Holders;

C Issue   a   Writ   of   Declaration   and
Mandamus   or   any   other  appropriate
Writ,   Direction,   Order   or   such   other
appropriate  remedy   to   declare   the
Aadhaar   (Enrolment   and   Update)
Regulations,   2016   being   illegal,   and
ultra   vires  the   Aadhaar  Act   and
violative   of
Articles   14
and
of   the
Constitution of India;

D. Issue   a   Writ   of   Declaration   and
Mandamus   or   any   other  appropriate
Writ,   Direction,   Order   or   such   other
appropriate  remedy   to   declare   the
Aadhaar   (Authentication)   Regulations,
2016   as   being   illegal   and  ultra  vires
the   Aadhaar   Act   and  violative   of

Articles   14
and
of   the   Constitution
of India;

E. Issue   a   Writ   of   Declaration   and
Mandamus   or   any   other  appropriate
Writ,   Direction,   Order   or   such   other
appropriate  remedy   to   declare   the
Aadhaar   (Data   Security)   Regulations,
2016 as being illegal, and  ultra vires
the   Aadhaar   Act   and  violative   of

Articles   14
and
of   the   Constitution
of India;

F. Issue   a   Writ   of   Declaration   and
Mandamus   or   any   other  appropriate
Writ,   Direction,   Order   or   such   other
appropriate remedy   to   declare  the
Aadhaar  (Sharing   of   Information)
Regulations,   2016   as   being   illegal,
and  ultra   vires  the  Aadhaar   Act   and
violative   of
Articles   14
and
of
the Constitution of India;

G. Issue   a   Writ   of   Declaration   and
Mandamus   or   any   other  appropriate
Writ,   Direction,   Order   or   such   other
appropriate  remedy   to   declare   the
Direction issued by Respondent No. 2 on
23.03.2017   vide   File   No.   800­262/2016­
AS.II,   as   being  illegal,   ultra   vires
the   Aadhaar   Act   and   violative   the

Articles  14
,   19(1)(a)
and
,   of   the
Constitution;

H. In   the   alternative   to   Prayer   (G)
above,   issue   a   Writ   of  Declaration
and   Mandamus   or   any   other   appropriate
Writ,  Direction,   Order   or   such   other

appropriate   remedy   to  Respondent No. 2

to   prohibit   all   Telecom   Service
Providers  from   storing,   retaining,
making copies or in any manner  dealing
with   Aadhaar   Number,   biometric
information   or   any  demographic
information   received   from   Respondent
No.   3   in  the  process   of   authentication
and/or   identity   verification   of  mobile
numbers;

I. Pass   such   further   and   other   orders   as
this   Hon'ble   Court   may   deem  fit   and
proper   in   the   instant   facts   and
circumstances.”

15. There are seven Transfer Cases/Transfer Petitions
to   be   heard   alongwith   the   Writ   Petitions   filed   under

Article 32
, where the issues pertaining to UID Scheme

and   other   related   issues   were   also   raised   before

different   High   Courts.     Four   Transfer   Applications

have   been   filed   by   Indian   Oil   Corporation   Limited

praying   for   transfer   of   different   writ   petitions

pending in different High Courts to be heard alongwith

Writ   Petition   (C)   No.   494   of   2012   –
Justice   K.S.

Puttaswamy  (Retd.) & Anr. Vs. Union of  India  &  Ors.
,

which was considering the same issues.  This Court had

passed   order   in   few   transfer   petitions   allowing   the

same   and   issued   certain   directions,   rest   of   transfer

petitions are also allowed.

16. One Transfer Petition has also been filed by Union

of   India   for   transferring   Writ   Petition   (C)   No.   2764

of   2013   –   Sri   V.   Viswanandham   Vs.   Union   of   India   &

Ors., pending in the High Court of Hyderabad.   It is

not necessary to notice various issues in the pending

different   writ   petitions,   which   were   sought   to   be

transferred   by   above   transfer   petitions/transfer
cases.     Issues   pending   in   different   High   Courts   were

more or less same, which have been  raised in leading

Writ   Petition   (C)   No.   494   of   2012   ­   Justice   K.S.

Puttaswamy   (Retd.)
&
Anr.   Vs.   Union   of   India   &   Ors.

and   other   writ   petitions,   which   were   entertained   and

pending in this Court.   Special Leave Petition (Crl.)

No.   2524   of   2014   has   been   filed   by   UIDAI   and   Anr.

challenging the interim order dated 18.03.2014 passed

by   High   Court   of   Bombay   at   Goa   in   Criminal   Writ

Petition   No.   10   of   2014   –   Unique   Identification

Authority of India Through its
Director General & Anr.

Vs. Central Bureau of Investigation
. On an application

filed   by   the   Central   Bureau   of   Investigation,   a

Magistrate passed an order on 22.10.2013 directing the

UIDAI to provide certain data with regard to a case of

a   rape   of   seven   years   old   child.     The   Bombay   High

Court at Goa passed an order dated 18.03.2014 issuing

certain   interim   directions,   which   were   challenged   by

UIDAI   in   the   aforesaid   special   leave   petition.     This

Court   passed   an   interim   order   on   24.03.2014   staying

the   order   passed   by   Bombay   High   Court   at   Goa.   This
Court   also   by   the   interim   order   restrained   the   UIDAI

to   transfer   any   biometric   information   of   any   person

who has been allotted the Aadhaar number to any other

agency   without   his   consent   in   writing.     This   special

leave   petition   was   directed   to   be   listed   alongwith

Writ Petition (C) No. 494 of 2012.

17. This   Court   in   Writ   Petition   (C)   No.   494   of   2012

has   issued   various   Interim   Orders   dated   23.09.2013,

24.03.2014, 16.03.2015, 11.08.2015 and 15.10.2015.

18. Seven Contempt Petitions have been filed.   Out of

seven,   five   contempt   petitions   have   been   filed

alleging violation of the aforesaid interim orders and

praying   for   issuing   proceedings   against   the

respondents   contemnor   for   willful   disobeying   the

interim orders.   One Contempt Petition (C) No. 674 of

2015   in   W.P.(C)   No.829   of   2013   has   been   filed   for

issuing   proceedings   against   the   respondents   contemnor

for   wilfully   disobeying   the   orders   dated   23.09.2013,

24.03.2014   and   16.03.2015   passed   by   this   Court.     The
other Contempt Petition (C) No. 34 of 2018 in W.P.(C)

No. 1014 of 2017 has been filed against the respondent

contemnors   for   wilfully   disobeying   the   order   dated

03.11.2017 passed by this Court in the aforesaid writ

petition.   All   the   contempt   applications   are   pending

without   any   order   of   issuing   notice   in   the   contempt

petitions.

19. Writ   Petition   (C)   No.494   of   2012   :   Justice   K.S.

Puttaswamy(Retd.)   and
another   vs.   Union   of   India   and

others
,   has   been   treated   as   leading   petition   wherein

various orders and proceedings have been taken, few of

such orders and proceedings also need to be noted. An

interim   order   dated   23.09.2013   was   passed   in   Writ

Petition (C) No.494 of 2012 which is to the following

effect:

“Issue   notice   in   W.P.(C)   No.   829/2013.

Application   for   deletion   of   the   name   of
petitioner   no.  1  in  T.P.(C)  Nos.   47  of  2013
is allowed.

T.P.(C)nos. 47­48 of 2013 and T.P.(C) No.
476   of   2013   are   allowed   in   terms   of   the
signed order.
All   the   matters   require   to   be   heard
finally.   List   all   matters   for   final   hearing
after the Constitution Bench is over.

In the meanwhile, no person should suffer
for   not   getting   the   Aadhaar   card   inspite   of
the   fact   that   some   authority   had   issued   a
circular   making   it   mandatory   and   when   any
person   applies   to   get   the   Aadhaar   Card
voluntarily,   it   may   be   checked   whether   that
person   is  entitled   for  it  under  the  law  and
it   should   not   be   given   to   any   illegal
immigrant.”

20. By order dated 26.11.2013 all the States and Union

Territories   were   impleaded   as   respondents   to   give

effective directions. Interim order passed earlier was

also   continued.   On   24.03.2014   following   order   was

passed in SLP(Crl.) No.2524 of 2014:

“Issue notice.

In addition to normal mode of service,
dasti service, is permitted.

Operation   of   the   impugned   order   shall
remain stayed.

In the meanwhile, the present petitioner
is restrained from transferring any biometric
information   of   any   person   who   has   been
allotted   the   Aadhaar   number   to   any   other
agency without his consent in writing.

More so, no person shall be deprived of
any   service   for   want   of   Aadhaar   number   in
case   he/she   is   otherwise   eligible/entitled.
All   the   authorities   are   directed   to   modify
their   forms/circulars/likes   so   as   to   not
compulsorily   require   the   Aadhaar   number   in
order to meet the requirement of the interim
order passed by this Court forthwith.

Tag and list the matter with main matter
i.e. WP(C) No.494/2012.”

21. This   court   on   16.03.2015   in   Writ   Petition   (C)

No.494   of 2012   directed   both   the   Union   of   India   and

the   States   and   all   their   functionaries   should   adhere

to the order dated 23.09.2013.

22. A three­Judge Bench on 11.08.2015 passed an order

referring   the   matter   to   a   Bench   of   appropriate

strength. After reference was made on a prayer made by

the   petitioners,   following   interim   directions   were

also passed by the Bench :

“Having considered the matter, we are of
the   view   that   the   balance   of   interest   would
be   best   served,   till   the   matter   is   finally
decided   by   a   larger   Bench   if   the   Union   of
India   or   the   UIDA   proceed   in   the   following
manner:­

1.   The   Union   of   India   shall   give   wide
publicity   in   the   electronic   and   print   media
including   radio  and  television   networks  that
it   is  not  mandatory  for  a  citizen  to   obtain
an Aadhaar card;

2. The production of an Aadhaar card will not
be   condition   for   obtaining   any   benefits
otherwise due to a citizen;
3.   The   Unique   Identification   Number   or   the
Aadhaar   card   will   not   be   used   by   the
respondents   for   any   purpose   other   than   the
PDS Scheme and in particular for the purpose
of   distribution   of   food   grains,   etc.   and
cooking   fuel,   such   as   kerosene.   The   Aadhaar
card may also be used for the purpose of the
LPG Distribution Scheme;

4.   The   information   about   an   individual
obtained   by   the   Unique   15   Identification
Authority   of   India   while   issuing   an   Aadhaar
card shall not be used for any other purpose,
save as above, except as may be directed by a
Court   for   the   purpose   of   criminal
investigation. Ordered accordingly.”

23. A Constitution Bench of five Judges on 15.10.2015

passed an order after hearing application filed by the

Union   of   India   for   seeking   certain

clarification/modification   in   the   earlier   order   dated

11.08.2015,   part   of   order,   which   is   relevant   for   the

present case is as follows:

“3.   After   hearing   the   learned   Attorney
General   for   India   and   other   learned   senior
counsels,   we   are   of   the   view   that   in
paragraph 3 of the Order dated 11.08.2015, if
we   add,   apart   from   the   other   two   Schemes,
namely,   P.D.S.   Scheme   and   the   L.P.G.
Distribution   Scheme,   the   Schemes   like   The
Mahatma   Gandhi   National   Rural   Employment
Guarantee   Scheme   12   (MGNREGS),   National
Social   Assistance   Programme   (Old   Age
Pensions,   Widow   Pensions,   Disability
Pensions)   Prime   Minister’s   Jan   Dhan   Yojana
(PMJDY)   and   Employees’   Provident   Fund
Organisation (EPFO) for the present, it would
not   dilute   earlier   order   passed   by   this
Court.   Therefore,   we   now   include   the
aforesaid   Schemes   apart   from   the   other   two
Schemes that this Court has permitted in its
earlier order dated 11.08.2015.

5.   We   will   also   make   it   clear   that   the
Aadhaar   card   Scheme   is   purely   voluntary   and
it   cannot   be   made   mandatory   till   the   matter
is   finally  decided   by  this   Court   one  way   or
the other.”

24. A three­Judge Bench of this Court in its reference

order dated 11.08.2015 noticed that these cases raise

far­reaching   questions   of   importance,   which   involves

interpretation   of   the   Constitution.   Two   earlier

decisions   of   this   Court,   i.e.,
M.P.   Sharma   &   Others

Vs. Satish Chandra & Others
, 1954 AIR SC 300, rendered

by eight Judges and another judgment rendered by six­

Judges   Bench  in
Kharak   Singh   Vs.   State   of   U.P.   &

Others
,   AIR   1963   SC   1295  were   noticed   and   it   was

observed   that   in   the   event   the   observations   made   in

the above two judgments are to be read literally and

accepted   as   the   law   of   this   country,   the   fundamental

rights guaranteed under the Constitution of India and

more   particularly   right   to   liberty   under
Article   21

would   be   denuded   of   vigour   and   vitality.

The   three­
Judge Bench observed that to give quietus to the kind

of controversy raised in this batch of cases once for

all,   it   is   better   that   the   ratio   decidendi   of
M.P.

Sharma
(supra) and
Kharak Singh
(supra) is scrutinized

and the jurisprudential correctness of the subsequent

decisions of this Court where the right to privacy is

either   asserted   or   referred   be   examined   and

authoritatively   decided   by   a   Bench   of   appropriate

strength.

25. By   order   dated   18.07.2017,   a   Constitution   Bench

considered   it appropriate   that   the   issue   be   resolved

by  a  Bench  of Nine  Judge. Following order was passed

on 18.07.2017 by a Constitution Bench:

“During the course of the hearing today,
it seems that it has become essential for us
to determine whether there is any fundamental
right   of   privacy   under   the   Indian
Constitution.   The   determination   of   this
question would essentially entail whether the
decision   recorded   by   this   Court   in
M.P.
Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors.
­ 1950 SCR 1077 by
an   eight­Judge Constitution  Bench,   and   also,
in
Kharak   Singh   vs.   The State   of   U.P.   and
Ors.
­   1962   (1)   SCR   332   by   a   six­Judge
Constitution   Bench,   that   there   is   no   such
fundamental  right,   is   the   correct   expression
of the constitutional position.
Before   dealing   with   the   matter   any
further,   we   are   of   the   view   that   the   issue
noticed   hereinabove   deserves   to   be   placed
before   the   nine­Judge   Constitution   Bench.
List   these   matters   before   the   Nine­Judge
Constitution Bench on 19.07.2017.

Liberty is granted to the learned counsel
appearing   for   the   rival   parties   to   submit
their written briefs in the meantime.”

26. A nine­Judge Constitution Bench proceeded to hear

and   decide   all   aspects   of   right   of   privacy   as

contained in the Constitution of India.

27. Dr.   D.Y.   Chandrachud   delivered   opinion   on   his

behalf  as well  as on behalf of  Khehar, CJ., Agrawal,

J.   and   Nazeer,   J.   Jasti   Chelameswar,   J.,   Bobde,   J.,

Sapre, J. and Kaul, J. also delivered concurring, but

separate opinions. The opinion of all the nine Judges

delivered in above cases held that right of privacy is

a right which is constitutionally protected and it is

a   part   of   protection   guaranteed   under
Article   21
of

the   Constitution   of   India.     Explaining   the   essential

nature   of   privacy,   Dr.   D.Y.   Chandrachud,   J.   in

paragraphs 297 and 298 laid down following:

“297. What, then, does privacy postulate?
Privacy   postulates   the   reservation   of   a
private   space   for   the   individual,   described
as the right to be let alone. The concept is
founded   on   the   autonomy   of   the   individual.
The ability of an individual to make choices
lies   at   the   core   of   the   human   personality.
The notion of privacy enables the individual
to assert and control the human element which
is   inseparable   from   the   personality   of   the
individual.   The   inviolable   nature   of   the
human   personality   is   manifested   in   the
ability to make decisions on matters intimate
to human life. The autonomy of the individual
is associated over matters which can be kept
private. These are concerns over which there
is   a   legitimate   expectation   of   privacy.   The
body and the mind are inseparable elements of
the   human   personality.   The   integrity   of   the
body  and   the  sanctity  of  the   mind  can  exist
on   the   foundation   that   each   individual
possesses an inalienable ability and right to
preserve   a   private   space   in   which   the   human
personality  can  develop.   Without   the   ability
to   make   choices,   the   inviolability   of   the
personality would be in doubt. Recognising a
zone of privacy is but an acknowledgment that
each individual must be entitled to chart and
pursue   the   course   of   development   of
personality. Hence privacy is a postulate of
human   dignity   itself.   Thoughts   and
behavioural patterns which are intimate to an
individual are entitled to a zone of privacy
where one is free of social expectations. In
that   zone   of   privacy,   an   individual   is   not
judged   by   others.   Privacy   enables   each
individual   to   take   crucial   decisions   which
find expression in the human personality. It
enables   individuals   to   preserve   their
beliefs,   thoughts,   expressions,   ideas,
ideologies,   preferences   and   choices   against
societal   demands   of   homogeneity.   Privacy   is
an intrinsic recognition of heterogeneity, of
the   right   of   the   individual   to   be   different
and   to   stand   against   the   tide   of   conformity
in   creating   a   zone   of   solitude.   Privacy
protects   the   individual   from   the   searching
glare   of   publicity   in   matters   which   are
personal to his or her life. Privacy attaches
to the person and not to the place where it
is   associated.   Privacy   constitutes   the
foundation   of   all   liberty   because   it   is   in
privacy   that   the   individual   can   decide   how
liberty is best exercised. Individual dignity
and   privacy   are   inextricably   linked   in   a
pattern   woven   out   of   a   thread   of   diversity
into the fabric of a plural culture.

298.  Privacy   of   the   individual   is   an
essential aspect of dignity. Dignity has both
an   intrinsic   and   instrumental   value.   As   an
intrinsic   value,   human   dignity   is   an
entitlement   or   a   constitutionally   protected
interest   in   itself.   In   its   instrumental
facet,   dignity   and   freedom   are   inseparably
intertwined,   each   being   a   facilitative   tool
to   achieve   the   other.   The   ability   of   the
individual   to   protect   a   zone   of   privacy
enables the realisation of the full value of
life   and   liberty.   Liberty   has   a   broader
meaning   of   which   privacy   is   a   subset.   All
liberties   may   not   be   exercised   in   privacy.

Yet   others   can   be   fulfilled   only   within   a
private space. Privacy enables the individual
to retain the autonomy of the body and mind.

The autonomy of the individual is the ability
to make decisions on vital matters of concern
to   life.   Privacy  has   not  been  couched  as   an
independent  fundamental  right.   But   that  does
not   detract   from   the   constitutional
protection   afforded   to   it,   once   the   true
nature   of   privacy   and   its   relationship   with
those   fundamental   rights   which   are   expressly
protected   is   understood.   Privacy   lies   across
the   spectrum   of   protected   freedoms.   The
guarantee of equality is a guarantee against
arbitrary State action. It prevents the State
from   discriminating   between   individuals.   The
destruction   by   the   State   of   a   sanctified
personal space whether of the body or of the
mind   is   violative   of   the   guarantee   against
arbitrary   State   action.   Privacy   of   the   body
entitles   an   individual   to   the   integrity   of
the   physical   aspects   of   personhood.   The
intersection   between   one’s   mental   integrity
and   privacy   entitles   the   individual   to
freedom of thought, the freedom to believe in
what   is   right,   and   the   freedom   of   self­
determination.   When   these   guarantees
intersect with gender, they create a private
space which protects all those elements which
are   crucial   to   gender   identity.   The   family,
marriage,   procreation   and   sexual   orientation
are   all   integral   to   the   dignity   of   the
individual.   Above   all,   the   privacy   of   the
individual   recognises   an   inviolable  right   to
determine how freedom shall be exercised. An
individual may perceive that the best form of
expression   is   to   remain   silent.   Silence
postulates   a   realm   of   privacy.   An   artist
finds   reflection   of   the   soul   in   a   creative
endeavour. A writer expresses the outcome of
a process of thought. A musician contemplates
upon   notes   which   musically   lead   to   silence.

The   silence,   which   lies   within,   reflects   on
the ability to choose how to convey thoughts
and ideas or interact with others. These are
crucial   aspects   of   personhood.   The   freedoms
under
Article   19
can   be   fulfilled   where   the
individual is entitled to decide upon his or
her   preferences.   Read   in   conjunction   with

Article 21
, liberty enables the individual to
have   a   choice   of   preferences   on   various
facets   of   life   including   what   and   how   one
will  eat,  the  way  one  will  dress,  the  faith
one   will   espouse   and   a   myriad   other   matters
on   which   autonomy   and   self­determination
require   a   choice   to   be   made   within   the
privacy of the mind. The constitutional right
to   the   freedom   of   religion   under
Article   25

has implicit within it the ability to choose
a   faith   and   the   freedom   to   express   or   not
express those choices to the world. These are
some   illustrations   of   the   manner   in   which
privacy  facilitates  freedom  and  is   intrinsic
to the exercise of liberty. The Constitution
does   not   contain   a   separate   article   telling
us   that   privacy   has   been   declared   to   be   a
fundamental   right.   Nor   have   we   tagged   the
provisions of Part III with an alpha­suffixed
right   to   privacy:   this   is   not   an   act   of
judicial   redrafting.   Dignity   cannot   exist
without   privacy.   Both   reside   within   the
inalienable   values   of   life,   liberty   and
freedom   which   the   Constitution   has
recognised.   Privacy   is   the   ultimate
expression of the sanctity of the individual.
It is a constitutional value which straddles
across the spectrum of fundamental rights and
protects for the individual a zone of choice
and self­determination.”

28. Privacy has been held to be an intrinsic element

of   the   right   to   life   and   personal   liberty   Under

Article   21
and   has   a   constitutional   value   which   is

embodied in the fundamental freedoms embedded in Part

III of the Constitution. It was further held that like

the   right   to   life   and   liberty,   privacy   is   not

absolute.   The   limitations   which   operate   on   the   right

to   life   and   personal   liberty   would   operate   on   the

right   to   privacy.   Any   curtailment   or   deprivation   of

that right would have to take place under a regime of
law.   The   procedure   established   by   law   must   be   fair,

just and reasonable.

29. The nine­Judge Constitution Bench also noticed the

context   of   right   of   privacy   under   the   international

covenants.   The   protection   of   right   of   privacy   as

developed   in   U.K.   decision, decisions   of   US   Supreme

Court,   constitutional   right   to   privacy   in   South

Africa,   constitutional   right   to   privacy   in   Canada,

privacy under European convention on human rights and

under Charter of fundamental rights of European Union

were considered with reference to decision rendered by

foreign courts.

30. Justice   D.Y.   Chandradhud   in   his   judgment   traced

the right of privacy from the judgments of this Court

which   were   rendered   for   the   last   five   decades.

Referring   to   International   Law   on   the   subject,

following   observations   were   made   by   Justice     D.Y.

Chandradhud, J.:

“103...In   the   view   of   this   Court,
international   law   has   to   be   construed   as   a
part   of   domestic   law   in   the   absence   of
legislation to the contrary and, perhaps more
significantly,   the   meaning   of   constitutional
guarantees must be illuminated by the content
of   international   conventions   to   which   India
is   a   party.   Consequently,   as   new   cases
brought   new   issues   and   problems   before   the
Court,   the   content   of   the   right   to   privacy
has   found   elaboration   in   these   diverse
contexts.”

31. All contours of the right of privacy having been

noticed   with   all   its   dimensions,   precautions   and

safeguards to be applied to protect fundamental rights

guaranteed   under   the   Constitution   of   India,   we   while

proceeding to decide the issues raised herein have to

proceed in the light of nine­Judge Constitution Bench

of this Court as noticed above.

32. We   have   been   manifestly   benefited   by   able   and

elaborate submissions raised before us by many eminent

learned senior counsel appearing for both the parties.

Learned   counsel   for   both   the   parties   have   advanced

their submissions with clarity, conviction and lot of

persuasions.   On   occasions   very   passionate   arguments

were advanced to support the respective submissions.
33. Different aspects of the case have been taken up

and advanced by different counsel as per understanding

between   them   which   enlightened   the   Court   on   varied

aspects   of   the   case.   The   submissions   have   been

advanced   on   behalf   of   the   petitioners   by   learned

senior Advocates, namely, Shri Kapil Sibal, Shri Gopal

Subramanium,   Shri   P.   Chidambaram,   Shri   Shyam   Divan,

Shri   K.V.   Viswanathan,   Shri Neeraj   Kishan   Kaul,   Ms.

Meenakshi   Arora,   Shri   C.U.   Singh,   Shri   Anand   Grover,

Shri   Sanjay   R.   Hegde,   Shri   Arvind   P.   Datar,   Shri

V.Giri,   Shri   Sajan   Poovayya   and   Shri   P.V.   Surendra

Nath.     A large number of other counsel also assisted

us including Mr. Gopal Sankaranarayanan. On behalf of

respondents arguments were led by the learned Attorney

General, Shri K.K. Venugopal. We have also heard Shri

Tushar   Mehta,   Additional   Solicitor   General,   Shri

Rakesh Dwivedi, learned senior counsel and Shri Zohaib

Hossain.

34. We   also   permitted   Dr.   Ajay   B.   Pandey,   Chief

Executive Officer, UIDAI to give a power presentation
to   explain   actual   working   of the   system.   After   the

power presentation was presented by Dr. Pandey in the

presence   of   the   learned   counsel   for   the   parties,

learned   counsel   have   also   thereafter   raised   certain

questions in respect of the power presentation, which

the   respondents   during   submissions   have   tried   to

explain. In view of the enormity of submissions raised

by   the   different   learned   counsel   appearing   for   the

petitioners,   we   proceed   to   notice   different   part   of

submissions   together.   As   noted   above   writ   petitions

have   been   filed   at   two   stages,   firstly,   when   UIDAI

Scheme   was   being   impleaded   by   the   Executive   order

dated 28.01.2009. Secondly, challenge was raised when

Act,   2016   was   enacted.   The   challenge   to   the   Scheme

dated   24.01.2009   contained   almost   same   grounds   on

which   Act,   2016   has   been   attacked.   Additional   ground

to   challenge   the   Scheme   was   that   Scheme   having   not

been   backed   by   law,   the   entire   exercise   was

unconstitutional   and   violative   of   fundamental   rights

guaranteed   under   the   Constitution   of   India   and

deserved to be set aside. The Act, 2016 having enacted
and now statutory scheme  is in place, we  shall  first

proceed   to   notice   the   submissions   attacking   the   Act,

2016   which   challenge   has   been   substantial   and

elaborately raised before us.

Petitioner's Submissions

35. The   submissions   advanced   by   different   learned

counsel   for   the   petitioners   instead   of   noticing

individually   are   being   noted   together   in   seriatim,

which are as follows:­

36. The   Aadhaar   project   initiated   by   Executive

notification dated 28.01.2009 as well as impugned Act,

2016   violates
Article   21.
The   constitutional   rights

of a person protected under
Articles 19
and
of the

Constitution is violated as individuals are compelled

to   part   with   their   demographic   and   biometric

information   at   the   point   of   collection.     Biometric

data is part of one's body and control over one's body

lies   on   the   very   centre   of   the   Right   of   Privacy.

Decisional   privacy   allows   individual   to   make   a
decision   about   their   own   body   and   is   an   aspect   of

right   of   self­determination.     The   Aadhaar   Project

including   the   Aadhaar   Act   violate   the   informational

privacy.     Data   collection   at   the   enrolment   centres,

the   Data   retention   at   Central   Identities   Data

Repositories   (CIDR),   usage   and   sharing   of   data

violates Right of Privacy.   There is complete absence

of   safeguards   at   the   stage   of   collection,   retention

and   use   of   data.     Act,   2016   and   Regulations   framed

thereunder   lack   safeguards   to   secure   sensitive

personal data of a person.

37. The Aadhaar project including Act, 2016 creates an

architecture   for   pervasive   surveillance,   which   again

violate   fundamental   Right   to   Privacy.     Personal   data

collected under the Executive scheme dated 28.01.2009

was   without   any   individual's   consent.
The   Act,   2016

although   contemplate   that   enrolment   under   Aadhaar   is

voluntary but in actual working of the Act, it becomes

defacto compulsory.
The  Act, 2016
does not pass the

three­fold  test as
laid down by
Nine Judges Bench in
Privacy Judgment ­
K.S. Puttaswamy Vs. Union of India
,

(2017)   10   SCC   1,  hereinafter   referred   to   as

“Puttaswamy   case”.    The   Three­fold   test
laid   down   in

Puttaswamy's case are:­

(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;

38. It is submitted that a law to pass under
Article
should be a law according to procedure established

by   law.
The   Act,   2016
violates   both
Article   14
and

Article 21
of the Constitution of India.  A legitimate

State aim, which ensure that nature and content of the

law,   which   imposes   the   restriction   falls   within   the

reasonable restrictions mandated by
Article 14
is also

not fulfilled.   State has not been  able to  discharge

its burden that Aadhaar project has been launched for
a legitimate State aim.   The third requirement, which

require   that   the   means   that   are   adopted   by   the

legislature   are   proportional   to   the   object   sought   to

be   fulfilled   by   the   law   is   also   not   fulfilled   since

the   provisions   of   the   Act   and   Regulations   framed

thereunder does not satisfy the Proportionality Test.

The   various   provisions   of   Act,   2016   and   Regulations

framed thereunder are unconstitutional.
Section 6
of

the   Act,   2016   is   unconstitutional   inasmuch   as   it

enable the respondents to continually compel residents

to   periodically   furnish   demographic   and   biometric

information.
Section   7
of   the   Act,   2016   is

unconstitutional   inasmuch   as   it   seeks   to   render   the

constitutional and statutory obligations of the State

to   provide   benefits,   subsidies   and   services,

conditional   upon   an   individual   bartering   his   or   her

biometric   and   demographic   information.
Section   8
is

unconstitutional   since   it   enables   tracking,   tagging

and   profiling   of   individuals   through   the

authentication process.
Section 8
delineate a regime

of   surveillance,   which   enables persons'   physical
movements to be traced.
Section 9
of the Act, 2016 is

also   unconstitutional   inasmuch   as   the   Aadhaar   number

is   de   facto   serving   as   proof   of   citizenship   and

domicile.     The   provisions   of   Chapter   IV,   i.e.,

Sections   11
to
are   ultra   vires   and

unconstitutional.   The   Constitution   does   not   permit

the establishment of an authority that in turn through

an   invasive   programme   can   claim   every   Indian

citizen/resident   to   a   central   data   bank   and   maintain

lifelong   records   and   logs   of   that   individual.

Sections   23
and
of   the   Act,   2016   are   also

unconstitutional   on   the   ground   of   excessive

delegation.
Section   29
of   the   Act,   2016   is   also

liable   to   be   struck   down   inasmuch   as   it   permits

sharing   of   identity   information.
Section   33
is

unconstitutional   inasmuch   as   it   provides   for   the   use

of   the   Aadhaar   data   base   for   police   investigation

pursuant to an order of a competent court.
Section 33

violates   the   protection   against   self­incrimination   as

enshrined   under
Article   20(3)
of   the   Constitution   of

India.     Furthermore,
Section   33
does   not   afford   an
opportunity   of   hearing   to   the   concerned   individual

whose   information   is   sought   to   be   released   by   the

UIDAI pursuant to the court's order.  This is contrary

to  the principles of  natural justice.
Section 47
is

also unconstitutional inasmuch as it does not allow an

individual citizen who finds that there is a violation

of   the   Act,   2016   to   initiate   the   criminal   process.

Section   48
,   which   empowers   the   Central   Government   to

supersede UIDAI is vague and arbitrary.

39. Elaborating   submission   with   regard   to
Section   7
,

it is submitted that
Section 7
is unconstitutional and

violative   of
Article   14
making   Aadhaar   mandatory,

which   has   no   nexus   with   the   subsidies,   benefits   and

services.  A person cannot be forced into parting with

sensitive   personal   information   as   a   condition   for

availing   benefits   or   services.
Section   7
also   falls

foul   of
Article   14
since   firstly   such   mandatory

authentication   has   caused,   and   continues   to   cause,

exclusion   of   the   most   marginalised   sections   of

society; and secondly, this exclusion is not simply a

question   of   poor   implementation   that   can   be
administratively   resolved,   but   stems   from   the   very

design   of   the   Act,   i.e.   the   use   of   biometric

authentication   as   the   primary   method   of

identification. There is large scale exclusion to the

mostly marginalised society not being able to identify

themselves   by   identification   process.     There   is

sufficient   material   on   record   to   indicate   general

deprivation, which itself is sufficient to struck down

Section 7
of the Act.

40. Elaborating   submission   on   unconstitutionality   of

Section 57
, it is contended that
Section 57
allows an

unrestricted   extension   of   the   Aadhaar   information   to

users who may be Government agencies or private sector

operators.
Section   57
enables   commercial   exploitation

of   an   individual's   biometrics   and   demographic

information   by   the   respondents   as   well   as   private

entities.   The   provision   also   ensures   creation   of   a

surveillance   society,   where   every   entity   assists   the

State   to   snoop   upon   an   Aadhaar   holder.     The   use   of

Aadhaar   infrastructure   by   private   entities   is

unconstitutional.
41. Elaborating   submissions   on
Section   59
,   it   is

contended that
Section 59
is unconstitutional inasmuch

as  it seeks to validate all action  undertaken by the

Central Government pursuant to the notification dated

28.01.2009.     Enrolment   in   pursuance   of   notification

dated 28.01.2009 having been done without an informed

consent   amounts   to   deprivation   of   the   intimate

personal   information   of   an   individual   violating   the

fundamental   Right   of   Privacy.     All   steps   taken   under

the   notification   dated   28.01.2009   were   not   backed   by

any   law,   hence   unconstitutional   and   clearly   violate

Article   21,   which   cannot   be   cured   in   a   manner   as

Section 59 pretend to do.

42.
The Act
is unconstitutional since it collects the

identify   information   of   children   between   five   to

eighteen years without parental consent.   The Aadhaar

architecture   adopts   foreign   technologies,   on   which

UIDAI   does   not   have   any   control,   exposing   data   leak

endangering life of people and security of nation.

43. Rule   9   as   amended   by   PMLA   Rules,   2017   is
unconstitutional   being   violative   of
Articles   14
,

19(1)(g)
,   21
and
300A
of   the   Constitution   of   India.

Rule 9 also violates
Sections 3
,
and
of the Act,

2016   and   ultra   vires   to   the   provisions   of
PMLA   Act,
.

44.
Section   139AA
of   the   Income   Tax   Act,   1961   is

liable to be struck down as violative of
Articles 14
,

19(1)(g)
and
of the Constitution in view of Privacy

Judgment –
Puttaswamy
(supra).

45. The   Mobile   Linking   Circular   dated   23.03.2017

issued   by   Ministry   of   Communications,   Department   of

Telecommunications is ultra vires.

46.
The Aadhaar Act, 2016
has wrongly been passed as a

Money   Bill.
The   Aadhaar   Act,   2016
is   not   a   Money

Bill.   The   Speaker   of   Lok   Sabha   wrongly   certified   the

bill   as   a   Money   Bill   under
Article   110
of   the

Constitution   of   India   virtually   excluding   the   Rajya

Sabha   from   legislative   process   and   depriving   the

Hon'ble   President   of   his   power   of   return.   Clauses

23(2)(g),
Section   54(2)(m)
and
Section   57
of   The
Aadhaar     (Targeted   Delivery   of   Financial   and   Other

Subsidies,   Benefits   and   Services)   Bill,   2016   and   the

corresponding   Sections   of   the   Act,   2016   as   notified

clearly   do   not   fall   under   any   of   the   Clauses   of

Article 110
of  the Constitution.
The Act
of Speaker

certifying   the   bill   as   a   Money   Bill   is   clearly

violation   of   constitutional   provisions.     Judicial

Review   of   decision   of   Speaker   certifying   it   as   Money

Bill   is   permissible   on   the   ground   of   illegality.   The

Aadhaar   Bill   being   not   a   money   bill   and   having   been

passed   by   Parliament   as   a   Money   Bill,   this   ground

alone   is   sufficient   to   strike   down   the   entire   Act,

2016.

47. Learned   Attorney   General   replying   the   above

submissions   of   the   counsel   for   the   petitioners

submits:­

48.
In   the
Privacy   Judgment  P.S.   Puttaswamy
case

(supra)  all nine Judges uniformly agreed that privacy

is   a   fundamental   right   traceable   to   the   right   to

liberty under
Article 21
of the Constitution and hence
subject   to   the   same   limitations   as   applicable   to   the

said Article. It has  further been held  that right of

privacy is not absolute and is subject to limitations.

Justice   D.Y.   Chandrachud   in   his   lead   judgment   laid

down   that   following   three   tests   are   required   to   be

satisfied   for   judging   the   permissible   limits   of   the

invasion   of   privacy   under
Article   21
of   the

Constitution:

(a)  The existence of a law

(b) A legitimate State interest; and

(c) The said Law should pass the test of
proportionality.

49. The   above   tests   have   also   been   agreed   by   other

Judges   who   have   delivered   the   separate   judgment.

Justice   J.   Chelameswar   and   Justice   A.N.   Sapre   have

used   the   test   of   compelling   State   interest   whereas

Justice   R.F.   Nariman   stated   that   if   this   test   is

applied, the  result is that one would be  entitled to

invoke   larger   public   interest   in   lieu   of   legitimate

State   aim.   The   legitimate   State   aim   obviously   will

lead   to   public   interest,   hence   in   the   event   test   of
legitimate State aim is fulfilled, the test of public

interest   stands   fulfilled.   After   enactment   of   Act,

2016,   the   first   condition   in   regard   to   the   existence

of  a  law stands satisfied.
The Act
requires only the

bare   demographic   particulars,   while   eschewing   most

other   demographic   particulars.
The   Act
further

contains   adequate   safeguards   for   protection   of

information   and   preventing   abuse   through   a   catena   of

offences   and   penalties.   The   provisions   of   Act   ensure

that   the   law   is   a   just,   fair   and   reasonable   and   not

fanciful, oppressive or arbitrary.

50. The legitimate  State  interest  or  a larger  public

interest   permeates   through   the   Act,   2016   which   is

clearly indicated by the following:

A. Preventing   the   dissipation   of   subsidies
and   social   welfare   benefits   which   is
covered by Section 7 of the Aadhaar Act;

B. Prevention   of   black   money   and   money
laundering   by   imposing   a   requirement   by
law for linking Aadhaar for opening bank
accounts;

C. To   prevent   income   tax   evasion   by
requiring,   through   an   amendment   to   the

Income   Tax   Act
,   that   the   Aadhaar   number
be linked with the PAN; and
D. To prevent terrorism and protect national
security   by   requiring   that   Aadhaar   be
linked to SIM cards for mobile phones.”

51.
The Aadhaar Act,  2016
was  enacted  with  prolonged

deliberations   and   study.   The   petitioners   have   failed

to   establish   any   arbitrariness   in   the   Act.   The   right

to   life   under
Article   21
is   not   the   right   to   a   mere

animal   existence,   but   the   right   to   live   with   human

dignity   which   would   include   the   right   to   food,   the

right   to   shelter,   the   right   to   employment,   the   right

to   medical   care,   education   etc.   If   these   rights   are

juxtaposed   against   the   right   to   privacy,   the   former

will   and   prevail   over   the   latter.   In   so   far   as

implementation of Aadhaar project prior to coming into

force of Act, 2016,  since obtaining an Aadhaar number

or   an   enrolment   number   was   voluntary,   especially

because of the interim orders passed by this Court, no

issue   of   violation   of   any   right,   leave   alone   a

fundamental right, could arise. The judgments of this

Court   in
M.P.   Sharma   and   Kharak   Singh
(supra)  being

those   of   eight   Judges   and   six   Judges   respectively,

holding that the right to privacy is not a fundamental
right,   the   judgments   of   smaller   benches   delivered

during the period upto 2016 would be  per incuriam, as

a result of which the State need not to have proceeded

on the basis that a law was required for the purpose

of   getting   an   Aadhaar   number   or   an   enrolment   number.

As   a   result,   the   Executive   instructions   issued   for

this purpose would be valid as well as the receipt of

benefits   and   subsidies   by   the   beneficiaries.   In   any

view of the matter,
Section 59
of the Act protects all

actions taken during the period 2010 until the passing

of the Aadhaar Act in 2016.

52. Learned   Attorney   General   submitted   that   Aadhaar

Act   has   rightly   been   characterised   as   Money   Bill   as

understood under
Article 110
of the Constitution. The

heart of the Aadhaar Act is
Section 7
. It is not the

creation of Aadhaar number per se which is the core of

the Act, rather, that is only a means to identify the

correct   beneficiary   and   ensure   ‘targeted   delivery   of

subsidies, benefits and services’, the expenditure for

which is incurred from the Consolidated Fund of India.
The   decision   of   the   Speaker   incorporated   into   a

certificate sent to the President is final and cannot

be the subject matter of judicial review.

53. The   decision   and   certification   of   the   Speaker

being a matter of procedure is included in the Chapter

under   the   head   ‘Legislative   Procedure’   which   clearly

excluded   judicial   review.   The   present   issue   is

squarely covered by the decisions of this Court.

54.
Section   57
,   which   has   been   attacked   as   being

untraceable to any of the sub­clauses of (a) to (f) of

Article 110
cannot be looked at in isolation. The Bill

in   its   pith   and   substance   should   pass   the   test   of

being a Money Bill and not isolated provisions.

55. Learned   Additional   Solicitor   General   of   India,

Shri   Tushar   Mehta,   also   advanced   submissions   on   few

aspects of the matter. On
Section 139AA
of Income Tax

Act, 1961 it is submitted that petitioners can succeed

only   when   they   demonstrate   that
Section   139AA
is

violative   of   right   to   privacy   on   the   following   tests
as
laid   down   by
nine­Judge   Constitution   Bench   in

Puttaswamy
case:

(i) absence of a law;

(ii) absence of legitimate State interest”

(iii) provisions   being   hit   by   lack   of
proportionality;
(iv)  the   provisions   being   manifestly
arbitrary.

56. It  is  submitted that  two­Judge  Bench  judgment  of

this   Court   in
Binoy   Biswam   Vs.   Union   of   India   and

others
,   (2017)   7   SCC   59,  had   upheld   the   vires   of

Section   139AA
subject   to   issue   of   privacy   which   at

that   point   of   time   was   pending   consideration.   It   is

further   submitted   that   provision   pertaining   to

Permanent   Account   Number   (PAN)   was   inserted   in   the

Income   Tax   Act
by
Section   139A
with   effect   from

01.04.1989 which obliged every person to quote PAN for

different purposes as enumerated in
Section 139A
. The

Petitioners   or   anyone   else   never   felt   aggrieved   by

requirement   of   getting   PAN   under
Section   139A
and

Parliament   on   considering   the   legitimate   State

interest has introduced
Section 139AA
which is only an
extension   of
Section   139A
which   requires   linking   of

PAN with Aadhaar number.

57.
The Income Tax Act
was amended by the Parliament

by   inserting
Section   139AA
in   the   legitimate   State

interest and in larger public interest. The object of

linking was to remove bogus PAN cards by linking with

Aadhaar,   expose   shell   companies   and   thereby   curb   the

menace   of   black   money,   money   laundering   and   tax

evasion.   Problem   of   multiple   PAN   cards   to   same

individuals   and   PAN   cards   in   the   name   of   fictitious

individuals are common medium of money laundering, tax

evasion, creation and channeling of black money.

58. Linking   of   Aadhaar   with   PAN   is   consistent   with

India’s international obligations and Goals. India has

signed the Inter­Governmental Agreement (IGA) with the

USA on July, 9, 2015, for improving International Tax

Compliance   and   implementing   the   Foreign   Account   Tax

Compliance   Act.   It   is   submitted   that   prior   to

01.07.2017   already   1.75   crore   tax   payers   had   linked

their PAN with Aadhaar on a voluntary basis. Replying
the   arguments   based   on   the   interim   orders   passed   by

this   Court   in   the   present   group   of   petitions,   it   is

submitted   that   enactment   of
Aadhaar   Act,   2016
has

taken   away   and   cured   the   basis   of   the   interim   order

passed   by   this   Court   since   one   of   the   submissions

which   was   made   before   this   Court   in   passing   the

interim orders was that there was no law, that Aadhaar

project   was   being   implemented   without   backing   of   any

law and during the said period the interim orders were

passed. The Aadhaar Act addresses the concern of this

Court as reflected in the interim orders passed before

enactment of the Act.

59. Shri   Mehta   further   contended   that   there   is

presumption to the constitutionality of a statute and

unless   one   attacking   the   statute   satisfies   the   Court

that  the statute is unconstitutional, the presumption

will   be   there   that   statute   is   constitutional.   Shri

Mehta   has   further   submitted   that   there   is   no

presumption of criminality or guilt on the requirement

to link Aadhaar.
60. Elaborating   the   doctrine   of   proportionality,

Additional Solicitor General submits that
Section 139A

fully satisfies the aforesaid test of proportionality.

61. Additional   Solicitor   General   in   support   of

Prevention     of   Money­laundering   (Maintenance   of

Records) Second Amendment Rules, 2017 submits that the

State has sought to make the  provisions of PMLA more

robust and ensure that the ultimate object of the Act

is   achieved.   The   Amendment   Rules,   2017   place   an

obligation on part of the reporting entity to seek the

details with regard to Aadhaar number of every client.

It is submitted that the said Rules have to be read in

consonance   with   the   object   of   the   PMLA   and   the

principles of “beneficial owner” behind the corporate

veil of shell companies, etc. It is submitted that the

PMLA   empowers   the   State   to   utilise   the   uniqueness   of

Aadhaar   in   order   to   tackle   the   problem   of   money

laundering. It is submitted that the
PMLA Act
, with a

clear emphasis on the investigation of the biological

persons   behind   the   corporate   entities,   establishes   a

mechanism wherein receiving benefits through benami or
shell   companies   through   related/connected   Directors,

fictitious persons or other personnel is eliminated.

62.
Section 139AA
and PMLA Rules amended in 2017 are

co­ordinated   in   their   operation.   The   PMLA   Rules   are

not   ultra   vires.   Mr.   Mehta   has   also   referred   to

international   Conventions   declaring   money   laundering

to   be   a   very   serious   offence.   He   submits   that

Prevention   of Money   Laundering   Act,   2002
was   enacted

in   the   context   of   concrete   international   efforts   to

tackle the menace of money laundering. Shri Mehta has

also   emphasised   on   the   necessity   of   verification   of

bank accounts with Aadhaar number. He submits that the

verification of bank account by way of Aadhaar is done

for the reason that often bank accounts are opened in

either   fictitious   names   or   in   the   name   of   wrong

persons on the basis of forged identity documents and

financial   crimes   are   committed.   It   is   seen   that

accommodation entries are mostly provided through the

banking   channels   by   bogus   companies   to   convert   black

money   into   white.   Benami   transactions   routinely   take

place through banking channels. All of the above, can
to a large extent be checked by verifying Aadhaar with

bank   accounts   to   ensure   that   the   account   belongs   to

the   person   who   claims   to   be   the   account   holder   and

that   he   or   she   is   a   genuine   person.   Verification   of

bank account with Aadhaar also ensures that the direct

benefit   transfer   of   subsidies   reach   the   Aadhaar

verified   bank   account   and   is   not   diverted   to   some

other account. Shell companies are often used to open

bank   accounts   to   hold   unaccounted   money   of   other

entities under fictitious identities   which will also

be curbed once Aadhaar verification is initiated.

63. Shri   Mehta   further   contends   that   impugned   PMLA

Rules   do   not   violate
Article   300A.
Amendment   Rules,

2017   also   cannot   be   said   to   be   ultra   vires   to   the

parent Act since it advances the object of the Act and

is   not   ultra   vires   of   any   provision   of   the   Act.   The

Amendment   Rules   are   required   to   be   placed   before   the

Parliament   which   serve   a   purpose   of   check   by   the

Legislature.   As   per
Section   159
of   the   Act   any

notification   under
Section   29
is   to   be   placed   before

the Parliament and Parliament may amend or reject the
same.   The   Rules,   2017   are   just,   fair   and   reasonable

and in furtherance of the object of the Act and do not

provide   for   any   arbitrary,   uncanalised   or   unbridled

power.

64. Shri   Rakesh   Dwivedi,   learned   senior   counsel,

appearing on behalf of UIDAI and State of Gujarat has

made   elaborate   submissions   while   replying   the

arguments of petitioners. The right to privacy is part

of
Article   21.
The   autonomy   of   individual   is

associated   over   matters   which   can   be   kept   private.

These   are   concerns   over   which   there   is   a   reasonable

expectation   of   privacy.   The   reasonable   expectation

involves   two   aspects.   Firstly,   the   individual   or

individuals claiming a right to privacy must establish

that   their   claim   involves   a   concern   about   some   harm

likely   to   be   inflicted   upon   them   on   account   of   the

alleged   act.   This   concern   should   be   real   and   not

imaginary or speculative. Secondly, the concern should

not be inflated.
65.
The   Act,   2016
operates   in   the   relational   sphere

and   not   in   the   core,   private   or   personal   sphere   of

residents.   It   involves   minimal   identity   information

for   effective   authentication.   The   purpose   is   limited

to   authenticate   for   identification.
The   Act
operates

in   a   public   sphere.
Section   29
of   the   Aadhaar   Act,

2016   provides   protection   against   disclosure   of

identity information without the prior consent of the

Aadhaar   Number   holder   concerned.   Sharing   is   intended

only for authentication purposes.

66. It   is   submitted   that   by   their   very   nature   the

demographic   information   and   photograph   sought   to   be

collected   cannot   be   said   to   be   of   such   a   nature   as

would   make   it   a   part   of   a   reasonable   expectation

paradigm.   Today,   globally   all   ID   cards   and   passports

contain   photographs   for   identification   along   with

address,   date   of   birth,   gender   etc.   The   demographic

information   is   readily   provided   by   individuals

globally   for   disclosing   identity   while   relating   with

others;   while   seeking   benefits   whether   provided   by

government   or   by   private   entities.   People   who   get
registered   for   engaging   in   a   profession,   who   take

admissions   in   Schools/Colleges/university,   who   seek

employment   in the   government   or   private   concerns   and

those who engage in various trade and commerce are all

required   to   provide   demographic   information   and   even

photographs.   There   is   no   expectation   of   privacy   in

providing those information for the above purposes.

67. There   are   lot   of   enactments   which   require

disclosure of demographic information comprising name,

address, email address etc., for example Central Motor

Vehicle   Rules,   1989,
Companies   Act,   2013
,
Special

Marriage   Act
,   The   Registration   of   Electoral   Rules,

1960,   The   Citizenship   (Registration   of   Citizens   and

Issue of National Identity Cards) Rules, 2009 and the

Passports   Act
.   However,   there   are   certain   special

contexts   in   which   non­disclosure   of   demographic

information   could   be   considered   as   raising   a

reasonable   expectation   of   privacy   such   as   where

juveniles in conflict with law are involved or where a

rape   victim’s   identity   or   medical   information   is

involved.   Thus,   unless   some   such   special   context   or
aggravating factor is established, there would not be

any reasonable expectation of privacy with respect to

demographic information.

68. As   regards   the   core   biometric   information,

comprising   finger   prints   and   iris   scans   it   would   be

pertinent to bear in mind that the Aadhaar Act is not

dealing   with   the   intimate   or private   sphere   of   the

individual.   The   core   biometrics   are   being   collected

from   residents   for   authentication   use   in   a   public

sphere and in relational context in which regard there

is no reasonable expectation of privacy in relation to

fingerprints and iris scans. Iris scan is nothing but

a   photograph   of   the   eyes   taken   from   a   camera.   From

fingerprints   and   iris   scans   nothing   is   revealed   with

regard to a person.

69. Use of fingerprints with regard to registration of

documents   is   an   accepted   phenomena.   The   use   of

mandatory   requirement   of   biometric   attendance   is

increasing   day   by   day   both   in   public   and   private

sector.   Thus,   requirement   of   fingerprints   and   iris
scan   would   not   attract   the   fundamental   right   of

privacy.   The   fingerprint   and   iris   scan   have   been

considered   to be   most   accurate   and   non­invasive   mode

of identifying an individual.

70. The information collected under the Act, 2016 does

not   involve   processing   for   economic   and   sociological

purposes.   Further,   in   the   data   center   de­duplication

process   is   based   on   anonymization   and   what   is   stored

in   the   servers   for   authentication   process   are   simply

templates and encrypted information of Aadhaar number

and   demographics.   The   identity   data   collected   is

stored   offline.   There   is   no   internet   connectivity.

Thus,   there   is   more   than   a   reasonable   security

protection under the Act.

71. The   rationale   of
Section   7
lies   in   ensuring

targeted delivery of services, benefits and subsidies

which are funded from the Consolidated Fund of India.

In   discharge   of   its   solemn   Constitutional   obligation

to enliven the Fundamental Rights of life and personal

liberty   and   to   eliminate   inequality   with   a   view   to
ameliorate   the   lot   of   the   poor   and   the   Dalits,   the

Central   Government   has   launched   several   welfare

schemes.   Some   of   such   schemes   are   PDS,   scholarship,

mid day meals, LPG subsidies, free education,etc.

72. The   requirement   to   undergo   authentication   on   the

basis   of   Aadhaar   number   is   made   mandatory   by

Section   7
.   This   requirement   is   only   for   “undertaking

authentication”.   However,   if   authentication   fails,

despite   more   than   one   attempt   then   the   possession   of

Aadhaar   number   can   be   proved   otherwise,   i.e.,   by

producing the Aadhaar card, and those who do not have

Aadhaar   number   can   make   an   application   for   enrolment

and produce the enrolment id number (EID). This takes

care of non­exclusion.

73. Aadhaar Act truly seeks to secure to the poor and

deprived persons an opportunity to live their life and

exercise their liberty. By ensuring targeted delivery

through   digital   identification,   it   not   only   provides

them   a   nationally   recognised   identity   but   also

attempts   to   ensure   the   delivery   of   benefits,   service
and   subsidies   with   the   aid   of   public

exchequer/Consolidated   Fund   of   India.   And   it   does   so

without impacting the Fundamental Right to Privacy of

the   Indians   or   at   best   minimally   impacting   it   with

adequate safeguards.

74. Regarding the numerization or numericalization of

individual argument, it is submitted that the Aadhaar

number does not convert the human being into a number.

The   objective   of   the   Aadhaar   number   is   to   enable

authentication which is done on a 1:1 matching basis,

i.e.,   to   say   when   the   requesting   entity   feeds   the

Aadhaar   number   along   with   some   identity   information

then   the   CIDR   picks   up   the   template   having   that

Aadhaar   number   automatically   and   matches   identity

information   with   the   encrypted   information   in   the

template.   This   Aadhaar   number   is,   therefore,

absolutely essential for the technological success of

authentication.   It   is,   therefore,   a   technology

requirement and it does not amount to numerization or

numericalisation.   The   contention   of   the   petitioners

ignores   the   distinction   between   identity   and
identification.   The   12   digit   Aadhaar   number   is   not

given   by   UIDAI   to   alter   the   identity   of   the

individual. It is provided to the enrolled individual

to   enable   his   identification   through   authentication.

Authentication   is   a   multi   dimensional   identifying

process.   The   Aadhaar   number   is   one   element   or   one

identifier   in   the   process   of   identification   through

authentication.   It   is   identificational   in   nature.

Section 2(a) of Aadhaar Act defines Aadhaar number to

mean “an identification number”.
Section 2(c)
defines

authentication   as   a   process   requiring   submission   of

Aadhaar   number   to   CIDR   for   verification.   Further,

Section 4(2)
provides that the Aadhaar number shall be

a   random   number   and  shall   bear   no   relation   to   the

attributes   or identity   of   the   Aadhaar   number   holder.

It is proof of identity and not identity itself.

75. Replying   the   submission   of   the   petitioners   that

fundamental   right   of   privacy/dignity/autonomy   under

Article 21
could not  be waived. It  is submitted that

Section 7 of Aadhaar Act does not involve any issue of

waiver.   When   an   individual   undergoes   any
authentication   to   establish   his   identity   to   receive

benefits, services or subsidies, he does so to enliven

his   fundamental   right   to   life   and   personal   liberty

under
Article 21.

76. With   regard   to
Section   57
,   it   is   submitted   that

since   an infrastructure for establishing identity of

residents   is   available,   therefore,   Parliament   intends

to make the use of Aadhaar number available for other

purposes   provided   the   need   for   the   service   of

authentication arises pursuant to any law or contract.

The   rationale   seems   to   be   that   due   to   liberalisation

and   privatisation   in   many   governmental   and   public

sector   zones,   private   corporate   bodies   are   operating

in   parallel   and   in   competition   with   public   sector   –

banking,   insurance,   defence,   health   etc.   These   are

vital   core   sectors   absolutely   essential   for   National

integrity,   National   economy   and   life   of   people.   In

many   areas   private   bodies   operate   under   common

regulators such as TRAI, Airport Authority, IRDA etc.

Then there is rapidly growing e­commerce.
77. In   Reply   to   the   submission   of   Shri   Kapil   Sibal

that the real object of the Act was to provide data to

the   digital   giants   like   Google,   Facebook   and   other

private   players,   it   is   contended   that   there   is   no

factual   foundation   for   this   submission   in   any   writ

petition.
In   the   Act
there   is   a   complete   bar   with

respect to sharing of core biometric information vide

Section   29(1)
.   The   non­core   biometric   information   is

to be shared only as per the provisions of the Act and

Regulations   and   with   prior   consent   and   only   for   the

purpose of authentication.

78. On the submission of the petitioners that power of

UIDAI   to   add   identity   information   by   Regulation   is

unguided and violative of
Article 14
, it is submitted

that   clauses   (g)   and   (j)   of
Section   2
use   the

expression   ‘such   other   biological   attribute’.   This

general   expression   needs   to   be   construed   by   applying

the   doctrine   of  ejusdem   generis.  The   use   of   word

‘such’   implies   similarity   with   what   is   specifically

mentioned   before   the   general   expression.   The

Regulations   framed   by   UIDAI   are   required   to   be   laid
before the Parliament under
Section 55
.
Section 55
is

a   mandatory   provision.   The   Parliament   has   power   to

modify   the   Regulation   and   also   to   reject   the

Regulation.   This   is   a   legislative   check   on   the

Regulation making power.

79. Almost 3% of GDP amounting to trillions of rupees

is   allocated   by   Governments   towards   subsidies,

scholarships,   pensions,   education,   food   and   other

welfare programmes. But approximately half of it does

not   reach   the   intended   beneficiaries.   A   former   Prime

Minister   said   only   15   out   of   100   rupees   reaches   the

target   person.   This   was   confirmed   by   the   Planning

Commission.   In   the   Audit   Report   No.3   of   2000   CAG

stated   in   “Overview”   that   programmes   suffered   from

serious targeting problems. It noted that bogus ration

cards   were   being   used   for   diversions   (1.93   crores

bogus).

80. Even   otherwise,   there   is   no   other   identification

document which is widely and commonly possessed by the

residents   of   the   country   and   most   of   the   identity

documents   do   not   enjoy   the   quality   of   portability.
They   also   do   not   lend   assurance   and   accuracy   on

account   of   existence   of   fake,   bogus   and   ghost   cards.

Therefore,   there   was   need   of   a   biometric   Aadhaar

number   which   enables   de­duplication   and

authentication.

81. Shri   Dwivedi   submits   that   security   and   data

privacy is ensured in the following manner:­

(i) The   data   sent   to   ABIS   is   completely
anonymised.   The   ABIS   systems   do   not
have access to resident’s demographic
information   as   they   are   only   sent
biometric   information   of   a   resident
with   a   reference   number   and   asked   to
de­duplicate.   The   de­duplication
result   with   the   reference   number   is
mapped   back   to   the   correct   enrolment
number   by   the   Authorities   own
enrolment server.

(ii) The  ABIS   providers   only   provide
their software and services. The data
is   stored   in   UIDAI   storage   and   it
never leaves the secure premises.

(iii) The   ABIS   providers   do   not   store   the
biometric   images   (source).   They   only
store template for the purposes of de­
duplication (with reference number).

(iv) The encrypted enrolment packet sent by
the   enrolment   client   software   to   the
CIDR   is   decrypted   by   the   enrolment
server   but   the   decrypted   packet   is
never stored.

(v) The   original   biometric   images   of
fingerprints,   iris   and   face   are
archived   and   stored   offline.   Hence,
they   cannot   be   accessed   through   an
online network.

(vi) The   biometric   system   provides   high
accuracy   of   over   99.86%.   The   mixed
biometric   have   been   adopted   only   to
enhance the accuracy and to reduce the
errors   which   may   arise   on   account   of
some   residents   either   not   having
biometrics   or   not   having   some
particular biometric.

82. Biometrics   are   being   used   for   unique

identification in e­passports by 120 countries. Out of

these   many   countries   use   fingerprints   and/or   iris

scans.   Additionally   19   European   Countries   have   smart

National Identity cards having chips containing
biometric   information.   A   number   of   African   and   Asian

countries   are   also   using   biometrics   for

identification. The ECHR and ECJ have not declared the

use   of   biometrics   or   the   collection   and   storage   of

data   for   the   said   purpose   to   be   violative   of   Human

Rights.   It   has   infact   been   upheld   in   the   context   of

passports, by the ECJ.

83.  On   the   submissions   that   de­duplication/

authentication   software   has   been   received   from   three

foreign   suppliers   and   since   the   source   code   of   the

algorithm   is   with   the   foreign   suppliers,   therefore,

they can easily obtain the data in the CIDR merely by

manipulation   of   the   algorithm,   Shri   Dwivedi   submits

that foreign biometric solution providers only provide

the   software,   the   server   and   hardware   belongs   to

UIDAI. So far the software is concerned UIDAI uses the

software as licensee. There is  no free  access to the

server   room   which   is   wholly   secured   by   security

guards.   The   enrolment   data   packet,   after   being

received in the data center, is decrypted for a short

duration   to   enable   extraction   of   minutiae   and
preparation   of   templates.   Once   the   template   is

prepared   the   entire   biometric   data   is   stored   offline

under the complete control of the UIDAI officials.

84. It   is   correct   that   the   source   code   for   the

algorithms   provided   are   retained   by   the   BSPs   which

constitutes   the   intellectual   property   right   of   the

BSP, however, it does not introduce any insecurity of

data   in   the   CIDR   as   the   softwares   operate

automatically   in   the   servers   located   in   the   server

rooms and also because the software functions only on

the   basis   of   the   templates   whilst   the   biometric   data

is stored offline.

85. During   the   submissions,   Shri   Dwivedi   also

emphasised on prohibition of sharing of core biometric

information. As per
Section 29(1)
read with
Regulation

17(1)
of   the   Aadhaar   (Sharing   of   Information)

Regulations, 2016. Referring to various Regulations of

the above Regulations. Shri Dwivedi submitted that the

architecture   of   Aadhaar   and   its   functioning   does   not

permit   CIDR   to   note   about   parties   of   any   transaction
or   location   of   the   individual   seeking   identification

of   his   Aadhaar   number.   Requesting   Agency   is   strictly

restricted to sharing of only demographic information

plus photograph and for authentication only, and this

is also with express and separate prior consent of the

ANH.   Requesting   Entities   cannot   share   authentication

logs   with   any   person   other   than   the   ANH   or   for

grievance redressal and resolution of disputes or with

the Authority for audit and shall not be used for any

purpose other than stated in
Regulation 18(5)
.

86. Elaborating   on   security   Shri   Dwivedi   submitted

that
Section   28(4)
mandates   that   the   UIDAI   shall

ensure that the agencies appointed by it have in place

the   appropriate   technical   and   organizational   security

measures   for   the   information   and   ensure   that   the

agreements   or   arrangements   entered   into   with   such

agencies   impose   obligations   equivalent   to   those

imposed on the Authority and require such agencies to

act only on instructions from the Authority.

87. RE  shall  ensure that  the  identity  information  of
the ANH or any other information generated during the

authentication   is   kept   confidential,   secure   and

protected   against   access,   use   and   disclosure   not

permitted   under   the   Act   and   regulations.[
Regulation

17(1)(e)
]. The private key used for digitally signing

the   authentication   request   and   the   license   keys   are

kept   secure   and   access   controlled[
Regulation   17(1)(f)

and
22(3)
]. All   relevant   laws   and   regulations   in

relation to data storage and data protection relating

to   Aadhaar   based   identity   information   in   their

systems, that of their agents and with authentication

devices are compiled with [
Regulation 17(1)(g)
].

88.
Regulation 22(4)
provides that RE shall adhere to

all   regulations,   information   security   policies,

processes,   standards,   specifications   and   guidelines

issued from time to time.

89. By virtue of
Section 56
and
of the Aadhaar Act,

2016,   the   provisions   of
IT   Act,   2000
are   applicable

except where it is inconsistent with Aadhaar Act. The

regular   regime   under   the
IT   Act
with   all   its

provisions   for   punishment   and   penalty   are   attracted
since   the   biometric   information   is   an   electronic

record   and   the   data   is   sensitive   personal   data   or

information   as   defined   in   the
IT   Act,   2000
.   On

submission   of   the   petitioner   that   there   is   no

mechanism   for   raising   any   grievance,   Shri   Dwivedi

submits that UIDAI has set up grievance redressal cell

as contemplated under
Section 23(1)(s)
of the Act. Any

ANH can make a complaint for redressal of grievance.

90. The   petitioner's   submission   that   Aadhaar   Act

enables the State to put the entire population of the

country in an electronic  leash  and to track them all

the time and it has converted itself as the State into

a totalitarian State, it is submitted that none of the

four clauses of
Regulation 26
entitle the authority to

store data about the purpose for which authentication

is   being   done.  Section   32(3)   of   the   Aadhaar   Act

specifically   prohibits   the   authority   from   collecting,

storing or maintaining, whether directly or indirectly

any   information   about   the   purpose   of   authentication.

The   proviso   to
Regulation   26
is   also   to   the   same

effect.   Here,   “the   purpose   of   authentication”   means
the   nature   of   activity   being   conducted   by   ANH   in

relation   to   which   the   authentication   is   required   and

is being done.

91. It   is   submitted   that   the   devices   which   are   used

for   the   purpose   of   authentication   are   not   geared   or

designed   to   record   the   nature   of   the   activity   being

done by the ANH which necessitates authentication. The

device  can only tell  the authority about the  time of

authentication,   the   identity   of   the   RE,   the   PID,   the

time   and   nature   of   response,   the   code   of   the   device

and   the   authentication   server   side   configurations.

Hence, with the aid of authentication record it is not

possible for the UIDAI to track the nature of activity

being   engaged   into   by   the   ANH.   In   fact,   in

overwhelming   majority   of   cases   the   authentication

record would not enable the authority to know even the

place/location where the activity is performed by the

ANH. The reason is that there are about 350 number of

REs. The  REs alone can  authenticate with the  help of

CIDR   and   this   is   done   by   them   through   the   ASA.   In   a

large   number   of   cases,   the   organizations   requiring
authentication would be doing so through some RE with

whom   they   have   some   agreements.   To   illustrate   nic.in

is   an   RE   which   provides   authentication   service   to

large   number   of   government   organizations   who   have

agreements   with   it.   The   authentication   record   would

only contain information about the identity about the

RE. It will give information only about the RE(nic.in)

and   not   about   the   organization   which   is   requiring

authentication   through   the   RE.   In   most   cases   the

authentication is one time.

92. It   is   submitted   that   biometrics   is   being

increasingly   resorted   to   for   identification   purposes

by many countries. At least 19 countries in Europe are

using   biometric   smart   cards   where   data   is   stored   in

the chip. These smart cards are similar to the  smart

cards which were used under the 2006 Act in U.K. The

important difference lies in the extent of data of the

individual   which   is   stored   in   the   smart   card.   The

European   cards   unlike   the   UK,   do   not   store   50

categories   of   data   which   was   being   stored   in   the   UK

card   that   came   to   be   abolished   in   2010   by   the
Repealing   Act,   2010
.   In   some   European   countries   the

smart   cards   are   issued   in   a   decentralized   manner,   as

in   Germany.   But   in   some   other   countries   the   smart

cards   are   issued   in   a centralized   manner.   In   either

case,   the   State   is   possessed   of   all   the   information

which is stored in the chip of the smart card, though

it   may   not   involve   authentication.   These   smart   cards

are   considered   to   be   property   of   the   State   and   the

State can require the production of the smart card for

identification   at   any   time.   Estonia   is   considered   to

be   a   pioneer   and   leader   in   the   field   of   the   use   of

biometrics and it has a centralized data base.

93. It   is   submitted   that   the   architecture   of   the

Aadhaar   Act   does   not   lead   to   any   real   possibility,

proximate or remote of mass surveillance in real time

by   the   State.   This   is   not   an   Act   for   empowering

surveillance   by   the   State.   It merely   empowers   the

State   to   ensure   proper   delivery   of   welfare   measures

mandated by Directive Principles of State Policy(Part

IV   of   the   Constitution)   which   actually   enliven   the

Fundamental Rights under
Article 14
, 19
and
of the
Constitution for a vast majority of the poor and down

trodden   in   the   country   and   thereby   to   bring   about

their comprehensive emancipation. It seeks to ensure,

justice, social, economic and political for the little

Indians.

94. Responding   on   the   arguments   raised   by   the

petitioner  on
Section 47
of the Act, it is  submitted

that
Section   47
has   rationale.   The   offences   and

penalties   under   Chapter   VII   are   all   intended   to

maintain   the   purity   and   integrity   of   CIDR   which   has

been   established   of   the   ANH.   Secondly,   the   entire

enrolment, storage in CIDR and authentication exercise

is   so   vast   and   that   any   breach   can   be   handled   with

efficiency   and   effectively   only   by   UIDAI.   There   are

similar   enactments   which   contain   similar   provisions

which   have   been   upheld   by   this   Court.   An   individual

can   make   a   complaint   to   UIDAI   directly   or   through

grievance   redressal   cell.   The   authority   would   be

obliged   to   examine   the   complaints   and   to   lodge   the

complaint   in   the   Court   as   per
Section   47
.

Additionally,   the   individual   is   generally   likely   to
have   a   complaint   of identity   theft,   cheating   or

disclosure.   In   such   a   situation   he   can   always   invoke

the provisions of
Sections 66C
,
66D
and
72A
of the IT

Act,   2000.   The   said   offences   carry   identical

penalties.

95. Elaborating   on
Section   59
of   the   Act,   it   is

submitted   that
Section   59
purports   to   provide   a

statutory basis to the resolution of the Government of

India,   Planning   Commission   dated   28.01.2009   and   also

to  validate anything done or any  action taken by the

Central Government under the said resolution. Section

59 of the Aadhaar Act seeks to continue what was done

and the actions which were taken under the Resolution

dated 28.01.2009.
Section 59
is clearly extending its

protection   retrospectively   to   that   which   was   done

under the notification dated 28.01.2009.

96.
Section 59
provides a deemed fiction. As a result

of this deemed fiction one has to imagine that all the

actions   taken   under   the   aforesaid   notifications   were

done   under   the   Act   and   not   under   the   aforesaid

notifications.
97. Replying   the   submission   of   the   petitioner   that

large   scale   of   marginal   section   of   the   society   is

deprived   due   to   exclusion   from   getting   the   benefits

and   the   Act   violates
Article   14
of   the   Constitution,

it is submitted that there is no exclusion on account

of de­duplication. It cannot be denied that there may

be   some   cases   where   due   to   non­identification,   a

person may have been put to some dis­advantage but on

failure   of   authentication   the   authorities   have   clear

discretion to accept other means of identification to

deliver the subsidies and benefits. In any view of the

matter on some administrative lapses and some mistakes

in   implementation   does   not   lead   to   conclude   that   Act

is   unconstitutional   and   wrong   implementation   of   the

Act   does   not   effect   the   constitutionality   of   the

statutes.

98. Learned   counsel   for   the   parties   have   placed

reliance   on   several   judgments   of   this   Court   and

Foreign   Courts   in   support   of   their   respective
submissions   which   we   shall   notice   while   considering

the respective submissions hereinafter.

99. Apart   from   hearing   elaborate   submissions   made   by

the learned counsel for the petitioners as well as the

respondents,   we   have   also   heard   several   learned

counsel for the intervener. The submission made by the

intervener has already been covered by learned counsel

for   the   petitioners   as   well   as   for   the   respondents,

hence it needs no repetition.

100. We   have   considered   the   submissions   raised   before

us.   From   the   pleadings   on   record   and   the   submissions

made   following  are   the   main   issues   which   arise   for

consideration:­

(1) Whether   requirement   under   Aadhaar   Act   to   give

one's   demographic   and   biometric   information   is

violative of fundamental right of privacy ?

(2) Whether the provisions of Aadhaar Act requiring

demographic   and   biometric   information   from   a

resident for Aadhaar number are unconstitutional

and do not pass three fold test as
laid down in
Puttaswamy
case ?

(3) Whether   collection   of   data   of   residents,   its

storage, retention and use violates fundamental

right of privacy ?

(4) Whether Aadhaar Act creates an architecture for

pervasive surveillance amounting to violation of

fundamental right of privacy ?

(5) Whether the Aadhaar Act provides protection and

safety of the data collected and received from

individual ?

(6) Whether   Section   7   of   Aadhaar   Act   is

unconstitutional   since   it   requires   that   for

purposes   of   establishment   of   identity   of   an

individual for receipt of a subsidy, benefit or

service   such   individual   should   undergo

authentication or furnish proof of possession of

Aadhaar number or satisfy that such person has

made an application for enrolment ? Further the

provision deserves to be struck down on account
of large number of denial of rightful claims of

various marginalised section of society and down

trodden?

(7) Can the State while   enlivening right to food,

right to shelter etc. envisaged under
Article 21

encroach   upon   the   rights   of   privacy   of   the

beneficiaries ?

(8) Whether Section 29 of the Aadhaar Act is liable

to be struck down inasmuch as it permits sharing

of identity information ?

(9) Whether
Section 33
is unconstitutional inasmuch

as it provides for the use of Aadhaar data base

for   Police   investigation,   which   violates   the

protection   against   self­incrimination   as

enshrined   under
Article   20(3)
of   the

Constitution of India ?

(10) Whether   Section   47   of   Aadhaar   Act   is

unconstitutional  inasmuch  as  it  does  not   allow

an   individual   who   finds   that   there   is   a
violation of Aadhaar Act to initiate a criminal

process ?

(11) Whether Section 57 of Aadhaar Act which allows

an unrestricted extension of Aadhaar information

of an individual for any purpose whether by the

State or any body, corporate or person pursuant

to any law or contact is unconstitutional ?

(12) Whether
Section 59
is capable of validating all

actions   taken   by   the   Central   Government   under

notification   dated   28.01.2009   or   under

notification   dated   12.09.2015   and   all   such

actions   can   be   deemed   to   be   taken   under   the

Aadhaar Act?

(13) Whether Aadhaar Act is unconstitutional since it

collects   the   identity   information   of   children

between 5 to 18 years without parental consent ?

(14) Whether   Rule   9   as   amended   by   PMLA   (Second

Amendment) Rules, 2017 is unconstitutional being

violative of
Article 14
, 19(1)(g)
, 21
and
300A
of Constitution of India and Section 3,7, 51 of

Aadhaar   Act.   Further,   whether   Rule   9   is   ultra

vires to the
PMLA Act, 2002
. itself.

(15) Whether circular dated 23.02.2017 issued by the

Department of Telecommunications, Government of

India is ultra vires.

(16) Whether Aadhaar Act could not have been passed

as Money Bill ? Further, whether the decision of

Speaker   of   Lok   Sabha   certifying   the   Aadhaar

(Targeted   Delivery   of   Financial   and   other

Subsidies, Benefits and Services) Bill, 2016 as

Money Bill is subject to judicial review ?

(17)     Whether
Section   139
­AA   of   the   Income   Tax   Act,

1961 is unconstitutional in view of the Privacy

judgment in
Puttaswamy
case?

(18)   Whether Aadhaar Act violates the Interim Orders

passed   by   this   Court   in   Writ   Petition   (C)   No.

494 of 2012 & other connected cases?
Whether   requirement   under   Aadhaar   Act   to
give   one's   demographic   and   biometric
information   is   violative   of   fundamental
Issue   Nos.1 right of privacy ? And
and 2  Whether   the   provisions   of   Aadhaar   Act
requiring   demographic   and   biometric
information   from   a   resident   for   Aadhaar
number   are   unconstitutional   and   do   not
pass   three   fold   test   as
laid   down   in

Puttaswamy
case ?

101.  Before we answer the above issues we need to look

into the object and purpose for which Aadhaar Act was

enacted.   The   Statement   of   Objects   and   Reasons

particularly   paragraph   5   of   such   Statement   throws

light   on   the   object   for   which   Legislation   came   into

existence. Paragraph 5 of the Statement of Objects and

Reasons is as follows:

“5.   The   Aadhaar   (Targeted   Delivery   of
Financial   and   Other   Subsidies,   Benefits   and
Services)   Bill,   2016,   inter   alia,   seeks   to
provide for—

(a)   issue   of   Aadhaar   numbers   to
individuals   on   providing   his
demographic   and   biometric
information   to   the   Unique
Identification Authority of India;

(b)   requiring   Aadhaar   numbers   for
identifying   an   individual   for
delivery of benefits, subsidies, and
services the expenditure is incurred
from or the receipt therefrom forms
part   of   the   Consolidated   Fund   of
India;

(c)   authentication   of   the   Aadhaar
number   of   an   Aadhaar   number   holder
in   relation   to   his   demographic   and
biometric information;

(d)   establishment   of   the   Unique
Identification   Authority   of   India
consisting   of   a   Chairperson,   two
Members   and   a   Member­Secretary   to
perform   functions   in   pursuance   of
the objectives above;

(e)   maintenance   and   updating   the
information   of   individuals   in   the
Central   Identities   Data   Repository
in   such   manner   as   may   be   specified
by regulations;

(f) measures pertaining to security,
privacy   and   confidentiality   of
information in possession or control
of   the   Authority   including
information   stored   in   the   Central
Identities Data Repository; and

(g)   offences   and   penalties   for
contravention   of   relevant   statutory
provisions.”

102.   Preamble to any Act is a key to read and unfold

an enactment. The Preamble of Aadhaar Act reads:

“
An Act
to provide for, as a good governance,
efficient, transparent, and targeted delivery
of   subsidies,   benefits   and   services,   the
expenditure   for   which   is   incurred   from   the
Consolidated   Fund   of   India,   to   individuals
residing in India through assigning of unique
identity numbers to such individuals and for
matters   connected   therewith   or   incidental
thereto.”

103.
Section   2
of   the   Act   is   definition   clause.

Section 2(a)
defines “Aadhaar number” in the following

manner:

“2(a)   “Aadhaar   number”   means   an
identification number issued to an individual
under sub­section (3) of
section 3
;”

104.
Sections   2(g)
and
2(k)
define   “biometric

information” and “demographic information” which is to

the following effect:

“2(g)   “biometric   information”   means
photograph, finger print, Iris scan, or such
other   biological   attributes  of   an   individual
as may be specified by regulations;

(k)   “demographic   information”   includes
information   relating   to   the   name,   date   of
birth, address and other relevant information
of   an   individual,   as   may   be   specified   by
regulations   for   the   purpose   of   issuing   an
Aadhaar   number,   but   shall   not   include   race,
religion,   caste,   tribe,   ethnicity,   language,
records   of   entitlement,   income or   medical
history;

105.
Section   3
of   the   Act   deals   with   Aadhaar

enrolment.
Section 3
is as follows:
“3.(1)   Every   resident   shall   be   entitled   to
obtain   an   Aadhaar   number   by   submitting   his
demographic   information   and   biometric
information   by   undergoing   the   process   of
enrolment:   Provided   that   the   Central
Government   may,   from   time   to   time,   notify
such other category of individuals who may be
entitled to obtain an Aadhaar number.

(2)   The   enrolling   agency   shall,   at   the   time
of   enrolment,   inform   the   individual
undergoing enrolment of the following details
in   such   manner   as   may   be   specified   by
regulations, namely:—

(a)   the   manner   in   which   the
information shall be used;

(b)   the   nature   of   recipients   with
whom   the   information   is   intended   to
be shared during authentication; and

(c)   the   existence   of   a   right   to
access information, the procedure for
making requests for such access, and
details   of   the   person   or   department
in­charge   to   whom   such   requests   can
be made.

(3) On receipt of the demographic information
and   biometric   information   under   sub­section
(1), the Authority shall, after verifying the
information,   in   such   manner   as   may   be
specified   by   regulations,   issue   an   Aadhaar
number to such individual.”

106.  The challenge in this batch of cases is challenge

to   the   Act   and   its   various   provisions   on   the   ground

that   the   Act   and   its   provisions   violate   right   of

privacy which is now recognised as fundamental right.
All aspects of  privacy right, which is  accepted as  a

fundamental   right   under
Article   21
,   have   been

elaborately   and   authoritatively   dealt   by   nine­Judge

Constitution   Bench   of   this   Court   in
Puttaswamy
case

(supra).

107.  Alan F. Westin in his work “Privacy and Freedom”

defined   privacy   as   “the   desire   of   people   to   choose

freely   under   what   circumstances   and   to   what   extent

they will expose themselves, their attitudes and their

behaviour to others”.

108.    Dr. D.Y. Chandrachud, J., in his opinion (which

expresses   majority   opinion)   in   paragraph   3   of   the

judgment while analysing the concept of privacy held:

“3.  Privacy,   in   its   simplest   sense,   allows
each human being to be left alone in a core
which is inviolable. Yet the autonomy of the
individual   is   conditioned   by   her
relationships with the rest of society. Those
relationships may and do often pose questions
to autonomy and free choice. The overarching
presence   of   State   and   non­State   entities
regulates   aspects   of   social   existence   which
bear upon the freedom of the individual. The
preservation of constitutional liberty is, so
to   speak,   work   in   progress.   Challenges   have
to   be   addressed   to   existing   problems.

Equally, new challenges have to be dealt with
in terms of a constitutional understanding of
where   liberty   places   an   individual   in   the
context   of   a   social   order.   The   emergence   of
new   challenges   is   exemplified   by   this   case,
where the debate on privacy is being analysed
in the context of a global information based
society.   In   an   age   where   information
technology   governs   virtually   every   aspect   of
our   lives,   the   task   before   the   Court   is   to
impart   constitutional   meaning   to   individual
liberty in an interconnected world. While we
revisit the question whether our Constitution
protects   privacy   as   an   elemental   principle,
the Court has to be sensitive to the needs of
and   the   opportunities   and   dangers   posed   to
liberty in a digital world.”

109.   Dwelling   on   essential   nature   of   privacy   in

paragraphs 297 and 298 following has been
laid down by

Dr. D.Y. Chandrachud, J.:

“297.  What,   then,   does   privacy   postulate?
Privacy   postulates   the   reservation   of   a
private space for the individual, described as
the   right   to   be   let   alone.   The   concept   is
founded on the autonomy of the individual. The
ability of an individual to make choices lies
at   the   core   of   the   human   personality.   The
notion   of   privacy   enables   the   individual   to
assert and control the human element which is
inseparable   from   the   personality   of   the
individual. The inviolable nature of the human
personality   is   manifested   in   the   ability   to
make   decisions   on   matters   intimate   to   human
life.   The   autonomy   of   the   individual   is
associated   over   matters   which   can   be   kept
private.   These   are   concerns   over   which   there
is   a   legitimate   expectation   of   privacy.   The
body and the mind are inseparable elements of
the   human   personality.   The   integrity   of   the
body and the sanctity of the mind can exist on
the foundation that each individual possesses
an inalienable ability and right to preserve a
private   space   in   which   the   human   personality
can   develop.   Without   the   ability   to   make
choices, the inviolability of the personality
would   be in   doubt.   Recognising   a   zone   of
privacy   is   but   an   acknowledgment   that   each
individual   must   be   entitled   to   chart   and
pursue   the   course   of   development   of
personality.   Hence   privacy   is   a   postulate   of
human dignity itself....

298.  Privacy   of   the   individual   is   an
essential aspect of dignity. Dignity has both
an   intrinsic   and   instrumental   value.   As   an
intrinsic   value,   human   dignity   is   an
entitlement   or   a   constitutionally   protected
interest   in   itself.   In   its   instrumental
facet,   dignity   and   freedom   are   inseparably
intertwined,   each   being   a   facilitative   tool
to   achieve   the   other.   The   ability   of   the
individual   to   protect   a   zone   of   privacy
enables the realisation of the full value of
life   and   liberty.   Liberty   has   a   broader
meaning   of   which   privacy   is   a   subset.   All
liberties   may   not   be   exercised   in   privacy.

Yet   others   can   be   fulfilled   only   within   a
private space. Privacy enables the individual
to retain the autonomy of the body and mind.

The autonomy of the individual is the ability
to make decisions on vital matters of concern
to   life.   Privacy  has   not  been  couched  as   an
independent  fundamental  right.   But   that  does
not   detract   from   the   constitutional
protection   afforded   to   it,   once   the   true
nature   of   privacy   and   its   relationship   with
those   fundamental   rights   which   are   expressly
protected   is   understood.   Privacy   lies   across
the   spectrum   of   protected   freedoms.   The
guarantee of equality is a guarantee against
arbitrary State action. It prevents the State
from   discriminating   between   individuals.   The
destruction   by   the   State   of   a   sanctified
personal space whether of the body or of the
mind   is   violative   of   the   guarantee   against
arbitrary   State   action.   Privacy   of   the   body
entitles   an   individual   to   the   integrity   of
the   physical   aspects   of   personhood.   The
intersection   between   one’s   mental   integrity
and   privacy   entitles   the   individual   to
freedom of thought, the freedom to believe in
what   is   right,   and   the   freedom   of   self­
determination.   When   these   guarantees
intersect with gender, they create a private
space which protects all those elements which
are   crucial   to   gender   identity.   The   family,
marriage,   procreation   and   sexual   orientation
are   all   integral   to   the   dignity   of   the
individual.   Above   all,   the   privacy   of   the
individual   recognises   an   inviolable  right   to
determine how freedom shall be exercised.”

110.   This Court has further held that like the right

to   life   and   liberty,   privacy   is   not   absolute.     Any

curtailment or deprivation of that right would have to

take   place   under   a   regime   of   law.   In   paragraph   313

following has been held:

“313.  Privacy   has   been   held   to   be   an
intrinsic   element   of   the   right   to   life   and
personal   liberty   under
Article   21
and   as   a
constitutional value which is embodied in the
fundamental freedoms embedded in Part III of
the Constitution. Like the right to life and
liberty,   privacy   is   not   absolute.   The
limitations   which   operate   on   the   right   to
life   and   personal   liberty   would   operate   on
the   right to   privacy.   Any   curtailment   or
deprivation of that right would have to take
place   under   a   regime   of   law.   The   procedure
established   by   law   must   be   fair,   just   and
reasonable.   The   law   which   provides   for   the
curtailment of the right must also be subject
to constitutional safeguards.”

111.   Further   elaboration   of   the   core   of   privacy   has

been stated in the following words in paragraphs 322,

323 and 326:

“322.  Privacy   is   the   constitutional   core   of
human   dignity.   Privacy   has   both   a   normative
and   descriptive   function.   At   a   normative
level   privacy   subserves  those   eternal   values
upon   which   the   guarantees   of   life,   liberty
and   freedom   are   founded.   At   a   descriptive
level,   privacy   postulates   a   bundle   of
entitlements   and   interests   which   lie   at   the
foundation of ordered liberty.

323.  Privacy   includes   at   its   core   the
preservation   of   personal   intimacies,   the
sanctity   of   family   life,   marriage,
procreation, the home and sexual orientation.

Privacy   also   connotes   a   right   to   be   left
alone. Privacy safeguards individual autonomy
and recognises the ability of the individual
to control vital aspects of his or her life.

Personal choices governing a way of life are
intrinsic   to   privacy.   Privacy   protects
heterogeneity   and   recognises   the   plurality
and   diversity   of   our   culture.   While   the
legitimate   expectation   of   privacy   may   vary
from   the   intimate   zone   to   the   private   zone
and from the private to the public arenas, it
is   important   to   underscore   that   privacy   is
not   lost   or   surrendered   merely   because   the
individual   is   in   a   public   place.   Privacy
attaches   to   the   person   since   it   is   an
essential   facet   of   the   dignity   of   the   human
being.

326.  Privacy   has   both   positive   and   negative
content.   The   negative   content   restrains   the
State   from   committing   an   intrusion   upon   the
life   and   personal   liberty   of   a   citizen.   Its
positive content imposes an obligation on the
State   to   take   all   necessary   measures   to
protect the privacy of the individual.”

112.   The first issue which is under consideration is

as   to   whether   requirement   under   the   Aadhaar   Act   to

give   one’s   biometric   and   demographic   information   is

violative of fundamental right of privacy. Demographic

and   biometric   information   has   been   defined   in

Section   2
as   noted   above.   Biometric   information   and

demographic   information   are   two   distinct   concepts   as

delineated   in   the   Act   itself.   We   first   take   up   the

demographic   information   which   includes   information

relating to the name, date of birth, address and other

relevant   information   of   an   individual,   as   may   be

specified by regulations for the purpose of issuing an

Aadhaar   number.   There   is   also   injunction   in
Section

2(k)
that   demographic   information   shall   not   include

race,   religion,   caste,   tribe,   ethnicity,   language,
records   of   entitlement,   income   or   medical   history.

Thus, demographic information which are   contemplated

to  be given in the  Act are  very limited information.

The   Regulations   have   been   framed   under   Act,   namely,

Aadhaar   (Enrolment   and   Update)   Regulations,   2016.

Regulation   4
enumerates   demographic   information   which

shall   be   collected   from   individuals   undergoing

enrolment.
Regulation 4
is as follows:

“4.   Demographic   information   required   for
enrolment.  —   (1)   The   following   demographic
information   shall   be   collected   from   all
individuals   undergoing   enrolment   (other   than
children below five years of age):

(i)    Name;
(ii)  Date of Birth;
(iii)  Gender;
(iv)   Residential Address.

(2) The following demographic information may
also   additionally   be   collected   during
enrolment,   at   the   option   of   the   individual
undergoing enrolment:

(i)   Mobile number;
(ii)  Email address.

(3)   In   case   of   Introducer­based   enrolment,
the following additional information shall be
collected:

(i)   Introducer name;

(ii)  Introducer’s Aadhaar number.
(4)   In   case   of   Head   of   Family   based
enrolment,   the   following   additional
information shall be collected:

(i)  Name of Head of Family;

(ii)  Relationship;

(iii)  Head   of   Family’s   Aadhaar
number;

(iv)   One   modality   of   biometric
information  of   the
Head of Family.

(5)   The   standards   of   the   above   demographic
information   shall   be   as   may   be   specified   by
the Authority for this purpose.

(6)   The   demographic   information   shall   not
include   race,   religion,   caste,   tribe,
ethnicity,   language,   record   of   entitlement,
income or medical history of the resident.”

113.   A   perusal   of
Regulation   4
indicates   that

information   which   shall   be   collected   from   individual

are   his   name,   date   of birth,   gender   and   residential

address.   The   additional   information   which   can   be

collected   at   the   option   of   the   individual   is   mobile

number   and   e­mail   address.   Schedule   I   of   the

Regulation   contains   format   of   enrolment   form   which

contains columns for information as contemplated under

Regulation 4
.
114.   The   information   contemplated   under
Regulation   4

are   nothing   but   information   relating   to   identity   of

the person.

115.  Every person born on earth takes birth at a place

at a time with a parentage. In the society person is

identified as a person born as son or daughter of such

and   such.   The   identity   of   person   from   the   time   of

taking   birth   is   an   identity   well   known   and   generally

every person describes himself or herself to be son or

daughter of such and such person.

116.  Every person, may be a child in school, a person

at his workplace, relates himself or herself with his

or   her   parent’s,   place   of   birth   etc.,   in   interaction

with   his   near   and   dear   and   outside   world   a   person

willingly   and   voluntarily   reveals   his   identity   to

others   in   his   journey   of   life.     The   demographic

information   are   readily   provided   by   individuals

globally   for   disclosing   identity   while   relating   with

others;   while   seeking   benefits   whether   provided   by

government   or   by   private   entities.   People   who   get
registered   for   engaging   in   a   profession,   who   take

admissions   in   schools/colleges/   university,   who   seek

employment in the government or private concerns, and

those who engage in various trade and commerce are all

required to provide demographic information. Hence, it

can be safely said that there cannot be a reasonable

expectation   of   privacy   with   regard   to   such

information. There are large number of statutes which

provide   for   giving   demographic   information   by   the

individuals. For inclusion of name of a person in the

Electoral   List   as   per   the   Registration   of   Electoral

Rules, 1960 framed under the
Representation of People

Act,   1950
,   a   person   is   required   to   give   similar

demographic   information   in   Form   II,   i.e.,   name,   date

of   birth,   gender,   current   address   and   permanent

address,   which   also   contains   optional   particulars   of

email   address   and   mobile   number.   Under   Central   Motor

Vehicle   Rules,   1989   person   making   an   application   for

driving   licence   is   required   to   give   name,   parent,

permanent   address,   temporary   address,   date   of   birth,

place of birth, educational qualification, etc.
117.
Under   Special   Marriage   Act
,   name,   condition,

occupation,   age,   dwelling   place,   age,   etc.   are   to   be

given. Thus, providing such demographic information in

most   of   the   statutes   clearly   indicates   that   those

information   are   readily   provided   and   no   reasonable

expectation   of   privacy   has   ever   been   claimed   or

perceived in above respect.

118.   It is well settled that breach of privacy right

can be claimed only when claimant on the facts of the

particular   case   and   circumstances   have   “reasonable

expectation of privacy”. In Court of Appeal in  Regina

(Wood)   v.   Commissioner   of   Police   of   the   Metropolis,

(2009)  EWCA Civ 414:  (2010) 1 WLR 123,  following was

held:

“22.   This   cluster   of   values,   summarised   as
the personal autonomy of every individual and
taking concrete form as a presumption against
interference   with   the   individual's   liberty,
is   a   defining   characteristic   of   a   free
society.   We   therefore   need   to   preserve   it
even in little cases. At the same time it is
important   that   this   core   right   protected   by

Article   8
,   however   protean,   should   not   be
read so widely that its claims become unreal
and   unreasonable.   For   this   purpose   I   think
there   are   three   safeguards,   or
qualifications.  First,   the   alleged   threat   or
assault to the individual's personal autonomy
must  (if
Article  8
is  to   be  engaged)   attain
"a   certain   level   of   seriousness".   Secondly,
the  touchstone   for
Article   8(1)
's   engagement
is whether the claimant enjoys on the facts a
"reasonable   expectation   of   privacy"   (in   any
of   the   senses   of   privacy   accepted   in   the
cases). Absent such an expectation, there is
no   relevant   interference   with   personal
autonomy.   Thirdly,   the   breadth of
Article
8(1)
may   in   many   instances   be   greatly
curtailed by the scope of the justifications
available   to   the   State   pursuant   to
Article
8(2).
I   shall   say   a   little   in   turn   about
these three antidotes to the overblown use of

Article 8.

24.   As   for   the   second   ­   a   "reasonable
expectation   of   privacy"   ­   I   have   already
cited paragraph 51 of Von Hannover, with its
reference to that very phrase, and also to a
"legitimate   expectation"   of   protection.   One
may   compare   a   passage   in   Lord   Nicholls'
opinion in Campbell at paragraph 21:

"Accordingly,   in   deciding   what   was
the   ambit   of   an   individual's
'private   life'   in   particular
circumstances   courts   need   to   be   on
guard against using as a touchstone
a   test   which   brings   into   account
considerations   which   should   more
properly be considered at the later
stage   of   proportionality.

Essentially   the   touchstone   of
private   life   is   whether   in   respect
of the disclosed facts the person in
question   had   a   reasonable
expectation of privacy."
In the same case Lord Hope said at paragraph
99:

"The   question   is   what   a   reasonable
person   of   ordinary   sensibilities
would feel if she was placed in the
same   position   as   the   claimant   and
faced with the same publicity."

In Murray v Big Pictures (UK) Ltd Sir Anthony
Clarke     MR   referred   to   both   of   these
passages, and stated:

"35...   [S]o   far   as   the   relevant
principles   to   be   derived   from
Campbell   are   concerned,   they   can   we
think be summarised in this way. The
first question is whether there is a
reasonable   expectation   of   privacy.

This   is   of   course   an   objective
question. ...

36.   As   we   see   it,   the   question
whether   there   is   a   reasonable
expectation   of   privacy   is   a   broad
one,   which   takes   account   of all   the
circumstances   of   the   case.   They
include   the   attributes   of   the
claimant, the nature of the activity
in   which   the   claimant   was   engaged,
the place at which it was happening,
the   nature   and   purpose   of   the
intrusion, the absence of consent and
whether   it   was   known   or   could   be
inferred, the effect on the claimant
and   the   circumstances   in   which   and
the   purposes   for   which   the
information   came   into   the   hands   of
the publisher."
119.   The   reasonable   expectation   of   privacy   test   was

also noticed and approved in privacy judgment, Dr. D.Y

Chandrachud,   J.   has   referred   judgment   of   US   Supreme

Court   in  Katz   v.   United   States,   389   US   347   (1967),

following   has   been   observed   by   this   Court   in
K.S.

Puttaswamy
(supra) in paragraph 185:

“The   majority   adopted   the   “reasonable
expectation of privacy” test as formulated by
Harlan, J. in Katz and held as follows:

“7.   [The]   inquiry,   as   Mr   Justice
Harlan   aptly   noted   in   his  Katz66
concurrence,   normally   embraces   two
discrete   questions.   The   first   is
whether   the   individual,   by   his
conduct,   has   “exhibited   an   actual
(subjective)   expectation   of   privacy”
… whether … the individual has shown
that   “he   seeks   to   preserve
[something] as private”. … The second
question is whether the individual’s
subjective expectation of privacy is
“one   that   society   is   prepared   to
recognize as “reasonable” ” … whether
…   the   individual’s   expectation,
viewed   objectively,   is   “justifiable”
under the circumstances. …

8.   …   Since   the   pen   register   was
installed   on   telephone   company
property   at   the   telephone   company’s
central   offices,   petitioner
obviously   cannot   claim   that   his
“property”   was   invaded   or   that
police   intruded   into   a
“constitutionally protected area”.”

Thus   the   Court   held   that   the   petitioner   in
all   probability   entertained   no   actual
expectation   of   privacy   in   the   phone   numbers
he   dialed,   and   that,   even   if   he   did,   his
expectation   was   not   “legitimate”.   However,
the   judgment   also   noted   the   limitations   of
the Katz test:

“Situations   can   be   imagined,   of
course,   in   which   Katz66  two­pronged
inquiry   would   provide   an   inadequate
index of Fourth Amendment protection.

…   In   such   circumstances,   where   an
individual’s   subjective   expectations
had been “conditioned” by influences
alien   to   well­recognised   Fourth
Amendment   freedoms,   those   subjective
expectations obviously could play no
meaningful role in ascertaining what
the   scope   of   Fourth   Amendment
protection was.”
(emphasis supplied)

120.   After   noticing   several   judgments   of   US   Supreme

Court,   D.Y.Chandrachud,   J.   in
K.S.   Puttaswamy

(supra)has   noted   that   the   reasonable   expectation   of

privacy   test   has   been   relied   on   by   various   other

jurisdictions   while   developing   the   right   of   privacy.

In paragraph 195 following has been held:

“195. The development of the jurisprudence on
the right to privacy in the United States of
America   shows   that   even   though   there   is   no
explicit mention of the word “privacy” in the
Constitution, the courts of the country have
not   only   recognised   the   right   to   privacy
under   various   amendments   to  the  Constitution
but also progressively extended the ambit of
protection under the right to privacy. In its
early   years,   the   focus   was   on   property   and
protection   of   physical   spaces   that   would   be
considered   private   such   as   an   individual’s
home.   This   “trespass   doctrine”   became
irrelevant   when   it   was   held   that   what   is
protected   under   the   right   to   privacy   is
“people,   not   places”.   The   “reasonable
expectation of privacy” test has been relied
on   subsequently   by   various   other
jurisdictions   while   developing   the   right   to
privacy.”

121.   As noted above an individual in interaction with

society or while interacting with his close relatives

naturally   gives   and   reveals   his   several   information

e.g.   his   name,   age,   date   of   birth,   residential

address, etc. We are of the opinion that in giving of

those   information   there   is   no   reasonable   expectation

of   privacy.   Thus,   we   conclude   that   demographic

information   required   to   be   given   in   the   process   of

enrolment does not violate any right of privacy.

122.    Every person born gets a name after his birth.

He strives throughout his life to establish himself to
be   recognised   by   society.   Recognition   by   fellow   man

and society at  large  is cherished dream of all  human

being,   for   fulfilling   the   above   dream,   he   does   not

hide   himself   from   society   rather   takes   pride   in

reasserting   himself   time   and   again   when   occasion

arises. He proclaims his identity time and again.

123.   The right to identity is an essential component

of   an   individual   in   her   relationship   with   the   State.

The   identification   is   only   the   proof   of   identity   and

everyone   has   right   to   prove   his   identity   by   an

acceptable   means.   Aadhaar   is   contemplated   as   one   PAN

INDIA identity, which is acceptable proof of identity

in every nook and corner of the country.

124.   Reference   of   International   Declaration   and

covenants have been made to assert that providing for

an   identity   to   every   resident   is   an   international

obligation   of India.   In   this   reference   following   has

been referred to:­

Name of the Provision
Convention
[Date of
Accession]
Universal
Article   6:
Everyone   has   the   right   to
Declaration of recognition   everywhere   as   a   person
Human before the law.

Rights,1948
[10.12.1948]
International
Article   16:
Everyone   shall   have   the
Covenant on right   to   recognition   everywhere   as   a
Civil and person before the law.
Political
Rights, 1976
[10.04.1979]
UN Convention
Article 8:
States Parties undertake to
on the Rights respect   the   right   of   the   child   to
of the Child, preserve   his   or   her   identity,
1989 including nationality, name and family
[11.12.1992] relations as recognized by law without
unlawful interference.

Article   29(1):
States   Parties   agree
that the education of the child shall
be directed to:....(c) The development
of   respect   for   the   child's   parents,
his   or   her   own   cultural   identity,
language and values, for the national
values   of   the   country   in   which   the
child   is   living,   the   country   from
which he or she may originate, and for
civilizations   different   from   his   or
her own;....

125. We may also notice one of the applications filed

by an organisation, namely, Swatantra, which works for

and   represents   the   interests   of   the   transgender   and

sexual minorities communities in India. The submission

has   been   made   on   behalf   of   organisation   that   Aadhaar
Act and Rules making the Unique Identification Number

(UID)   or   the   Aadhaar   number   mandatory   and   requiring

them   to   provide   their   personal   demographic   and

biometric   information   for   enrolment   is   a   serious

infringement   of   the   constitutional   right   to   privacy

and   dignity   of   transgender   persons.   It   is   submitted

that   the   transgender   community   has   experienced   a

history   of   legally   and   socially   sanctioned   violence

and discrimination from private individuals and State

authorities.
Reference   of   Criminal   Tribes   Act,   1871

and   certain   State   legislations   has   been   made   in   this

regard. The applicant also refers to judgment of this

Court   in  National   Legal   Services   Authority   and   Union

of   India   and   others,   2014   (5)   SCC   438,  where   this

Court has held that the freedom of expression includes

one's right to expression of a self­identified gender

identity   through   dress,   action   behaviour   etc.   The

submission has been made that making the disclosure of

gender   under   Section   2   of   the   Aadhaar   Act   and

Regulation   4
of   the   Aadhaar   (Enrolment   &   Update)

Regulations violates
Article 14
of the Constitution.
126.   Further,   the   Aadhaar   Act   amounts   to

discrimination   against   transgender   persons   under

Article   15
of   the   Constitution   on   the   ground   of

gender.   Further,   it   is   contended   that   disclosure   of

gender identity violates
Article 21
and
Article 19(1)

(a) of the transgender persons.

127. We   having   considered   the   provisions   of   the   Act

and Enrolment and Update Regulations and having found

that   disclosure   of   demographic   information   does   not

violate   any   right   of   privacy, the   said   conclusion

shall   also   be   fully   applicable with   regard   to

transgender. This Court in NALSA (supra) has held that

Article   19(1)(a)
which   provides   that   all   citizens

shall   have   the   right   to   freedom   of   speech   and

expression   which   includes   one's   right   to   expression

and his self­identified gender, it  is the right of  a

person to identify his gender. In paragraphs 69 and 72

of the judgment following has been laid down:

“69.
Article   19(1)
of   the   Constitution
guarantees   certain   fundamental   rights,
subject  to  the   power   of  the  State  to   impose
restrictions   from   exercise   of   those   rights.
The   rights   conferred   by
Article   19
are   not
available to any person who is not a citizen
of   India.
Article   19(1)
guarantees   those
great   basic   rights   which   are   recognized   and
guaranteed as the natural rights inherent in
the status of the citizen of a free country.

Article   19(1)(a)
of   the   Constitution   states
that   all   citizens   shall   have   the   right   to
freedom   of   speech   and   expression,   which
includes   one's   right   to   expression   of   his
self­identified   gender.   Self­identified
gender can be expressed through dress, words,
action   or   behavior   or   any   other   form.   No
restriction   can   be   placed   on   one's   personal
appearance or choice of dressing, subject to
the   restrictions   contained   in
Article   19(2)

of the Constitution.

72.   Gender   identity,   therefore,   lies   at   the
core   of   one's   personal   identity,   gender
expression and presentation and, therefore, it
will have to be protected Under
Article 19(1)

(a)   of   the   Constitution   of   India.   A
transgender's   personality   could   be   expressed
by   the   transgender's   behavior   and
presentation. State cannot prohibit, restrict
or   interfere   with   a   transgender's   expression
of   such   personality,   which   reflects   that
inherent personality. Often the State and its
authorities   either   due   to   ignorance   or
otherwise fail to digest the innate character
and   identity   of   such   persons.   We,   therefore,
hold   that   values   of   privacy,   self­identity,
autonomy   and   personal   integrity   are
fundamental   rights   guaranteed   to   members   of
the transgender community Under
Article 19(1)

(a) of the Constitution of India and the State
is   bound   to   protect   and   recognize   those
rights. ”

128.   When   this   Court   has   already   recognised   the
constitutional   right   of   transgenders   of   their   self­

identification and it has been further held that self­

identification relates to their dignity. Dignity is a

human right which every human being possesses.
Article
came   for   consideration   in   the   said   judgment   where

this   Court   held   that
Article   15
has   used   the

expression   'citizen'   and   'sex'   which   expressions   are

'gender neutral'. The protection of fundamental rights

is   equally   applicable   to   transgenders.     Paragraph   82

is as follows:

“82.
Article   14
has   used   the   expression
"person"   and   the
Article   15
has   used   the
expression   "citizen"   and   "sex"   so   also

Article   16.

Article   19
has   also   used   the
expression "citizen".
Article 21
has used the
expression   "person".   All   these   expressions,
which are "gender neutral" evidently refer to
human­beings.   Hence,   they   take   within   their
sweep Hijras/Transgenders and are not as such
limited   to   male   or   female   gender.   Gender
identity as already indicated forms the core
of   one's personal   self,   based   on   self
identification,   not   on   surgical   or   medical
procedure.   Gender   identity,   in   our   view,   is
an integral part of sex and no citizen can be
discriminated   on   the   ground   of   gender
identity,   including   those   who   identify   as
third gender. ”

129.   This   Court   having   recognised   the   right   of
transgenders   to   their   self­identity   in   which

transgenders also feel pride as human being, the mere

fact that under Enrolment and Update Regulations they

are   required   to   provide   demographic   information

regarding gender does not, in any manner, affect their

right of privacy. There is no expectation of right of

privacy   with   regard   to   gender.   The   aforesaid   right

having   been   clearly   recognised   by   this   Court,

expression   of   those   rights   of   self­identification

cannot, in any  manner, be said to affect  their  right

to   privacy.   We,   thus,   conclude   that   with   regard   to

transgenders   also   no   right   of   privacy   is   breached   in

giving   the   demographic   information.
In   so   far   as

biometric   information   as   held   above,   ample

justification has been found which satisfied the three

fold   test as   laid   down   in
Puttaswamy
case,  which   is

equally applicable to transgender also.

130.   Now,   we   come   to   the   biometric   information   as

referred to in
Section 2(g)
and required to be  given

in   the   process   of   enrolment   by   a   person.     Biometric

information means photographs, fingerprints, iris scan
and   other   such   biometric   attributes   of   an   individual

as   may   be   specified   by   the   regulations.   Biometric

informations   are   of   physical   characteristics   of   a

person.   A   person   has   full   bodily   autonomy   and   any

intrusion   in   the   bodily   autonomy   of   a   person   can   be

readily accepted as breach of his privacy.   In  Regina

(Wood)   Vs.   Commissioner   of   Police   of   the   Metropolis

(supra), in paragraph 21, following has been laid down

by Lord LJ.:­

“21.   The   notion   of   the   personal   autonomy   of
every individual marches with the presumption
of   liberty   enjoyed   in   a   free   polity:   a
presumption   which   consists   in   the   principle
that   every   interference   with   the   freedom   of
the   individual   stands   in   need   of   objective
justification.   Applied   to   the   myriad
instances   recognised   in   the
Article   8

jurisprudence,   this   presumption   means   that,
subject to the qualifications I shall shortly
describe,   an   individual's   personal   autonomy
makes him ­ should make him ­ master of all
those   facts   about   his   own   identity,   such   as
his   name,   health,   sexuality,   ethnicity,   his
own image, of which the cases speak; and also
of   the   "zone   of   interaction"   (the   Von
Hannover   case   40   EHRR   I,   paragraph   50)
between   himself   and   others.   He   is   the
presumed   owner   of   these   aspects   of   his   own
self;   his   control   of   them   can   only   be
loosened,   abrogated,   if   the   State   shows   an
objective   justification   for   doing   so.”
131.   U.S. Supreme Court in  United States Vs. Antonio

Dionisio,   35   L.Ed.   2D   67  had   occasion   to   consider

physical characteristic of a person's voice in context

of   violation   of   privacy   rights.   With   regard   to

fingerprints,   it   was   noticed   that   the   fingerprinting

itself   involves   none   of   the   probing   into   an

individual's   private   life.     In   paragraph   Nos.   21,   22

following was stated:­

“[21,22]  In Katz v. United States, supra, we
said   that   the   Fourth   Amendment   provides   no
protection   for   what   “a   person   knowingly
exposes  to  the   public,  even  in  his   own  home
or office . . ..” 389 U.S., at 351, 19 L Ed
2d   576.   The   physical   characteristics   of   a
person's   voice,   its   tone   and   manner,   as
opposed   to   the   content   of   a   specific
conversation,   are   constantly   exposed   to   the
public.  Like   a  man's   facial  characteristics,
or   handwriting,   his   voice   is   repeatedly
produced   for   others   to   hear.   No   person   can
have   a   reasonable   expectation   that   others
will   not   know   the   sound   of   his   voice,   any
more   than   he   can   reasonably   expect   that   his
face will be a mystery to the world. As the
Court   of   Appeals   for   the   Second   Circuit
stated:

“Except   for   the   rare   recluse   who
chooses to live his life in complete
solitude,   in   our   daily   lives   we
constantly speak and write, and while
the   content   of   a   communication   is
entitled   to   Fourth   Amendment
protection   .   .   .   the   underlying
identifying   characteristics—the
constant   factor   throughout   both
public and private communications—are
open for all to see or hear. There is
no   basis   for   constructing   a wall   of
privacy against the grand jury which
does   not   exist   in   casual   contacts
with   strangers.   Hence   no   intrusion
into an individual's privacy results
from   compelled   execution   of
handwriting   or   voice   exemplars;

nothing is being exposed to the grand
jury   that   has   not   previously   been
exposed   to   the   public   at   large.”'
United States v. Doe (Schwartz), 457
F2d, at 898­899.

The   required   disclosure   of   a   person's   voice
is thus immeasurably further removed from the
Fourth   Amendment   protection   than   was   the
intrusion into the body effected by the blood
extraction   in   Schmerber.   “The   interests   in
human   dignity   and   privacy   which   the   Fourth
Amendment protects forbid any such intrusions
on   the   mere   chance   that   desired   evidence
might   be   obtained.”  Schmerber   v.   California,
384 US, at 769­770, 16L Ed 2d 908. Similarly,
a seizure of voice exemplars does not involve
the   “severe,   though   brief,   intrusion   upon
cherished personal security,” effected by the
“pat­down”   in   Terry—“surely   .   .   .   an
annoying, frightening and perhaps humiliating
experience.” Terry v. Ohio, 392 US, at 24­25,
20   L   Ed   2d   889. Rather,   this   is   like   the
fingerprinting   in   Davis,   where,   though   the
initial   dragnet   detentions   were
constitutionally impermissible, we noted that
the   fingerprinting   itself   “involves   none   of
the probing into an individual's private life
and   thoughts   that   marks   an   interrogation   or
search.”   Davis   v.   Mississippi,   394   US,   at
727,   22   L   Ed   2d   676:   cf.   Thom   v.   New   York
Stock Exchange, 306 F Supp 1002, 1009.”

132. The petitioners have relied upon S. and Marper Vs.

The   United   Kingdom,  a   judgment   of   Grand   Chamber   of

European   Court   of   Human   Rights   dated   04.12.2008.

European   Court   of   Human   Rights   on   an   application

submitted by Mr. S and Mr. Marper allowed their claim

of   violation   of
Article   8
of   Convention.     Applicants

had   complained   that   the   authorities   had   continued   to

retain their fingerprints and cellular samples and DNA

profiles   after   the   criminal   proceedings   against   them

had ended with an acquittal or had been discontinued.

In   the   above   context,   nature   of   fingerprints   and   DNA

samples came to be examined in reference of breach of

Article   8
of   the   Convention.     The   retention   of   DNA

samples   and   fingerprints   was   held   to   be   interference

with   the   right   to   respect   for   private   life.     In

paragraph 84, following was held:­

“84.   The   Court   is   of   the   view   that   the
general   approach   taken   by   the   Convention
organs   in   respect   of   photographs   and   voice
samples should also be followed in respect of
fingerprints.   The   Government   distinguished
the   latter   by   arguing   that   they   constituted
neutral,   objective   and   irrefutable   material
and,   unlike   photographs,   were   unintelligible
to the untutored eye and without a comparator
fingerprint.   While   true,   this   consideration
cannot   alter   the   fact   that   fingerprints
objectively   contain   unique   information   about
the individual concerned allowing his or her
identification with precision in a wide range
of   circumstances.   They   are   thus   capable   of
affecting   his   or   her   private   life   and
retention   of   this   information   without   the
consent of the individual concerned cannot be
regarded as neutral or insignificant.”

133. One important observation, which has been made in

the   above case   was   that   on   the   question   whether   the

personal   information   retained   by   the   authorities

involves   any   of   the   private­life   aspects,   due   regard

has to be given to the specific context in which the

information at issue has been recorded.  Following was

stated in paragraph 67:­

“67............... However,   in   determining
whether  the  personal   information   retained   by
the authorities involves any of the private­
life aspects mentioned above, the Court will
have   due   regard   to   the   specific   context   in
which   the   information   at   issue   has   been
recorded   and   retained,   the   nature   of   the
records,   the   way   in   which   these   records   are
used   and   processed   and   the   results   that   may
be   obtained   (see,  mutatis   mutandis,   Friedl,
cited above, §§49­51, and Peck v. the United
Kingdom, cited above, §59).”
134.    The   biometric   data   as   referred   to   in
Section

2(g)
thus   may   contain   biological   attributes   of   an

individual with regard to which a person can very well

claim a reasonable expectation of privacy but whether

privacy rights have been  breached or  not needs to be

examined   in   the   subject   context   under   which   the

informations were obtained.

135.   Having   found   that   biometric   information   of   a

person may claim a reasonable expectation of privacy,

we   have   to   answer   as   to   whether   obtaining   biometric

information in context of enrolment breaches the right

of privacy of individual or not.

136.   D.Y.  Chandrachud,  J.  in
Puttaswamy
(supra)  held

that all restraints on privacy, i.e. whether a person

has   reasonable   expectation   of   privacy,   must   fulfill

three   requirements   before   a   restraint   can   be   held   to

be   justified.     In   Paragraph   319,   following   has been

held:­

“310.   While   it   intervenes   to   protect
legitimate   state   interests,   the   state   must
nevertheless   put   into   place   a   robust   regime
that   ensures   the   fulfillment   of   a   threefold
requirement.   These   three   requirements   apply
to   all   restraints   on   privacy   (not   just
informational privacy). They emanate from the
procedural   and   content­based   mandate   of

Article 21.
The first requirement that there
must   be   a   law   in   existence   to   justify   an
encroachment   on   privacy   is   an   express
requirement of
Article 21.
For, no person can
be   deprived   of   his   life   or   personal   liberty
except   in   accordance   with   the   procedure
established   by   law.   The   existence   of   law   is
an   essential   requirement.   Second,   the
requirement   of   a   need,   in   terms   of   a
legitimate state aim, ensures that the nature
and   content   of   the   law   which   imposes   the
restriction   falls   within   the   zone   of
reasonableness   mandated  by
Article   14
,   which
is   a   guarantee   against   arbitrary   State
action. The pursuit of a legitimate state aim
ensures   that   the   law   does   not   suffer   from
manifest   arbitrariness.   Legitimacy,   as   a
postulate,   involves   a   value   judgment.

Judicial   review   does   not   re­appreciate   or
second   guess   the   value   judgment   of   the
legislature   but   is   for   deciding   whether   the
aim   which   is   sought   to   be   pursued   suffers
from   palpable   or   manifest   arbitrariness.   The
third   requirement   ensures   that   the   means
which   are adopted   by   the   legislature   are
proportional   to   the   object   and   needs   sought
to   be   fulfilled   by   the   law.   Proportionality
is   an   essential   facet   of   the   guarantee
against   arbitrary   State   action because   it
ensures   that   the   nature   and   quality   of   the
encroachment   on   the   right   is   not
disproportionate   to   the   purpose   of   the   law.

Hence, the threefold requirement for a valid
law arises out of the mutual inter­dependence
between   the   fundamental   guarantees   against
arbitrariness   on   the   one   hand   and   the
protection   of   life   and   personal   liberty,   on
the other. The right to privacy, which is an
intrinsic   part   of   the   right   to   life   and
liberty,   and   the   freedoms   embodied   in   Part
III   is   subject   to   the   same   restraints   which
apply to those freedoms. ”

137.  We, thus, have to test the provisions of Aadhaar

Act in light of three­fold test as have been laid down

above.     The   First   requirement,   which   need   to   be

fulfilled   is   existence   of   law.     Admittedly,   Aadhaar

Act is a Parliamentary law, hence the existence of law

is   satisfied.     Mere   existence   of   law   may   not   be

sufficient unless the law is fair and reasonable.  The

Aadhaar   Act   has   been   enacted   with   an   object   of

providing   Aadhaar   number   to   individuals   for

identifying   an   individual   for   delivery   of   benefits,

subsidies   and   services.   Several   materials   have   been

brought   on   the   record   which   reflect   that   in   the

several studies initiated by the Government as well as

the   World   Bank   and   Planning   Commission,   it   was

revealed   that   food   grains   released   by   the   Government

for   the   beneficiaries   did   not   reach   the   intended

beneficiaries   and   there   was   large   scale   leakages   due

to   the   failure   to   establish   identity.     Reference   to
Audit   Report   No.   3   of 2000   of   Comptroller   &   Auditor

General of India is made in this regard.  The Planning

Commission   of   India   in   its   Performance   Evaluation

Report   titled   “Performance   Evaluation   Report   of

Targeted   Public   Distribution   System(TPDS)”   dated

March, 2005 found as follows:­

I. State­wise   figure   of   excess   Ration   Cards   in

various states and the existence of over 1.52

Crore excess Ration Cards issued.

II. Existence   of fictitious   households   and

identification errors leading to exclusion of

genuine beneficiaries.

III. Leakage through ghost BPL Ration Cards found

to   be   prevalent   in   almost   all   the   States

under study.

IV. The   leakage   of   food   grains   through   ghost

cards   has   been   tabulated   and   the   percentage

of   such   leakage   on   an   All   India   basis   has

been estimated at 16.67%.

V. It   is   concluded   that   a   large   part   of   the

subsidized   food­grains   were  not  reaching   the
target group.

138.   The   Law,   i.e.,   Aadhaar   Act,   which   has   been

brought to provide for unique identity for delivery of

subsidies, benefits or services was a dire necessity,

which   decision   was   arrived   at   after   several   reports

and   studies.     Aadhaar   Act   was,   thus,   enacted   for   a

legitimate   State   aim   and   fulfills   the   criteria   of   a

law   being   fair   and   reasonable.     Learned   Attorney

General   has   also   placed   reliance   on   report   of   United

Nations titled “Leaving No One Behind: the imperative

of   inclusive   development”,   which   has   stated   as

follows:­

“The decision of India in 2010 to launch the
Aadhaar   programme   to   enrol   the   biometric
identifying   data   of   all   its   1.2   billion
citizens, for example, was a critical step in
enabling   fairer   access   of   the   people   to
government benefits and services.  Programmes
such as Aadhaar have tremendous potential to
foster   inclusion   by   giving   all   people,
including   the   poorest   and   most   marginalized,
an   official   identify.     Fair   and   robust
systems   of   legal   identity   and   birth
registration   are   recognised   in   the   new   2030
Agenda   for   Sustainable   Development   as   an
important   foundation   for   promoting   inclusive
societies.”
139.   Learned   Attorney   General   has   also   relied   on

Resolution   of   the   United   Nations   General   Assembly

dated   25.09.2015   titled   “Transforming   our   World:   the

2030   Agenda   for   Sustainable   Development”.   It   is

submitted   that   by   the   said   resolution,   the   following

goal was adopted”­

“16.9   by   2030,   provide   legal   identity   for
all, including birth registration”

140. In this context, judgment of U.S. Supreme Court in

Otis R. Bowen, Secretary of Health and Human Services,

et al. Vs. Stephen J. Roy et al., 476 U.S. 693 (1986)

is   referred   where   the   statutory   requirement   that   an

applicant   provide   a   social   security   number   as   a

condition of eligibility for the benefits in question

was   held   to   be   not   violative.     It   was   held   that

requirement   is   facially   neutral   in   religious   terms,

applies   to   all   applicants   for   the   benefits   involved,

and clearly promotes a legitimate and important public

interest.   Chief Justice Burger writing the opinion of

the Court stated:­

“The   general   governmental   interests   involved
here   buttress   this   conclusion.   Governments
today   grant   a   broad   range   of   benefits;

inescapably   at   the   same   time   the
administration   of   complex   programs   requires
certain conditions and restrictions. Although
in some situations a mechanism for individual
consideration   will   be   created,   a   policy
decision   by   a   government   that   it   wishes   to
treat   all   applicants   alike   and   that   it   does
not   wish   to   become   involved   in   case­by­case
inquiries   into   the   genuineness   of   each
religious   objection   to   such   condition   or
restrictions   is   entitled   to   substantial
deference. Moreover, legitimate interests are
implicated   in   the   need   to   avoid   any
appearance   of   favoring   religious   over
nonreligious applicants.

The   test   applied   in   cases   like   Wisconsin   v.

Yoder,   406   U.
S.   205
,
S.Ct.   1526,   32
L.Ed.2d 15 (1972), is not appropriate in this
setting.   In   the   enforcement   of   a   facially
neutral   and   uniformly   applicable   requirement
for   the   administration   of   welfare   programs
reaching   many   millions   of   people,   the
Government is entitled to wide latitude. The
Government   should   not   be   put   to   the   strict
test   applied   by   the   District   Court;   that
standard   required   the   Government   to   justify
enforcement   of   the   use   of   Social   Security
number   requirement   as   the   least   restrictive
means   of   accomplishing   a   compelling   state
interest.   Absent   proof   of   an   intent   to
discriminate   against   particular   religious
beliefs   or   against   religion   in   general,   the
Government   meets   its   burden   when   it
demonstrates   that   a   challenged   requirement
for   governmental   benefits,   neutral   and
uniform   in   its   application,   is   a   reasonable
means   of   promoting   a   legitimate   public
interest. ”
141. Repelling   an   argument   that   requirement   of

providing social security account number for obtaining

financial aid to dependent children violates the right

to   privacy,   following   was   held   in  Doris   McElrath   Vs.

Joseph A. Califano, in Para 11 :­

“[11] The appellants' principal contention on
appeal   is   that   the   federal   and   state
regulations   requiring   dependent   children   to
acquire   and   submit   social   security   account
numbers   as   a   condition   of   eligibility   for
AFDC   benefits   are   statutorily   invalid   as
being inconsistent with and not authorized by
the
Social   Security   Act
.   We   find   the
arguments   advanced   in   support   of   this
contention to be without merit and hold that
the   challenged   regulations   constitute   a
legitimate   condition   of   eligibility   mandated
by   the   Congress   under   the
Social   Security
Act
. Accord, Chambers v. Klein, 419 F. Supp.

569   (D.N.J.   1976),   aff'd   mem.,   564   F.2d   89
(3d Cir. 1977); Green v. Philbrook, 576 F.2d
440   (2d   Cir.   1978);   Arthur   v.   Department   of
Social and Health Services, 19 Wn. App. 542,
576   P.2d   921   (1978).   We   therefore   conclude
that   the   district   court   properly   dismissed
the   appellants'   statutory   invalidity
allegations for failure to state a claim upon
which relief could be granted. ”

142. Now,   we   come   to   third   test,   i.e.,   test   of

proportionality.   D.Y.   Chandrachud,   J.   in
Puttaswamy

(supra)  has observed “Proportionality is an essential

facet of the guarantee against arbitrary State action
because it ensures that the nature and quality of the

encroachment   on   the   right   is   not   disproportionate   to

the purpose of the law”.

In
Modern Dental College and

Research Centre and Others Vs. State of Madhya Pradesh

and Others
, (2016) 7 SCC 353, Dr. Sikri, J explaining

the concept of proportionality laid down following in

Paragraphs 64 and 65:­

“64.   The   exercise   which,   therefore,   to   be
taken   is   to   find   out   as   to   whether   the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic   society   and   such   an   exercise
involves   the   weighing   up   of   competitive
values, and ultimately an assessment based on
proportionality   i.e.   balancing   of   different
interests.

65.   We   may   unhesitatingly   remark   that   this
doctrine   of   Proportionality,   explained
hereinabove in brief, is enshrined in
Article
itself when we read Clause (1) along with
Clause (6) thereof. While defining as to what
constitutes   a   reasonable   restriction,   this
Court in plethora of judgments has held that
the expression “reasonable restriction” seeks
to   strike   a   balance   between   the   freedom
guaranteed   by   any   of   the   sub­clauses   of
Clause   (1)   of
Article   19
and   the   social
control   permitted   by   any   of   the   clauses   (2)
to   (6).   It   is   held   that   the   expression
“reasonable”   connotes   that   the   limitation
imposed  on  a  person  in   the  enjoyment  of  the
right   should   not   be   arbitrary   or   of   an
excessive   nature   beyond   what   is   required   in
the interests of public. Further, in order to
be   reasonable,   the   restriction   must   have   a
reasonable   relation   to   the   object   which   the
legislation seeks to achieve, and must not go
in   excess   of   that   object   {See   P.P.
Enterprises   v.   Union   of   India   (1982)   2   SCC

33.   At   the   same   time,   reasonableness   of   a
restriction   has   to   be   determined   in   an
objective   manner   and   from   the   standpoint   of
the   interests   of   the   general   public   and   not
from   the   point   of   view   of   the   persons   upon
whom   the   restrictions   are   imposed   or   upon
abstract   considerations   {See
Mohd.   Hanif
Quareshi v. State of Bihar
1959 SCR 629).

In

M.R.F. Ltd. v. State of Kerala
(1998) 8 SCC
227,   this   Court   held   that   in   examining   the
reasonableness   of   a   statutory   provision   one
has to keep in mind the following factors:

(1) The directive principles of State
Policy.

(2)   Restrictions   must   not   be
arbitrary   or   of   an   excessive   nature
so as to go beyond the requirement of
the interest of the general public.

(3)   In   order   to   judge   the
reasonableness   of   the   restrictions,
no   abstract   or   general   pattern   or   a
fixed   principle   can   be   laid down   so
as to be of universal application and
the same will vary from case to case
as   also   with   regard   to   changing
conditions,   values   of   human   life,
social   philosophy   of   the
Constitution,   prevailing   conditions
and the surrounding circumstances.

(4) A just balance has to be struck
between the restrictions imposed and
the   social   control   envisaged   by

Article 19(6).
(5) Prevailing social values as also
social needs which are intended to be
satisfied by the restrictions.

(6)   There   must   be   a   direct   and
proximate   nexus   or   reasonable
connection   between   the   restrictions
imposed   and   the   object   sought   to   be
achieved. If there is a direct nexus
between   the   restrictions,   and   the
object   of   the   Act,   then   a   strong
presumption   in   favour   the
constitutionality   of   the   Act   will
naturally arise. ”

143.   One   of   the   submissions   of   the   petitioner   to

contend that proportionality test is not fulfilled in

the   present   case   is;   State   did   not   adopt   an

alternative   and   more   suitable   and   least   intrusive

method   of   identification,   i.e.,   smart   card   or   other

similar devices.   While examining the proportionality

of   a   Statute,   it   has   to   be   kept   in   mind   that   the

Statute   is   neither   arbitrary   nor   of   an   excessive

nature   beyond   what   is   required   in   the   interest   of

public.   The Statutory scheme, which has been brought

in place has a reasonable relation to the object which

the   legislation   seeks   to   achieve   and   the   legislation

does not exceed the object.  The object of Aadhaar Act
as   noticed   above   was   to   provide   for   unique   identity

for   purposes   of   delivery   of   benefits, subsidies   and

services to the eligible beneficiaries and to ward of

misappropriation   of   benefits   and   subsidies,   ward   of

deprivation of eligible beneficiaries.  European Court

of   Justice   has   taken   a   view   that   the   proportionality

merely involves an assessment that the measures taken

was not more than necessary.  Reference is made to the

judgment   of Digital   Rights   Ireland   Ltd.   Vs.   Minister

for Communications [2015] QBECJ, wherein it was held:

“46 In that regard, according to the settled
case   law   of   the   court,   the   principle   of
proportionality requires that acts of the EU
institutions be appropriate for attaining the
legitimate   objectives   pursued   by   the
legislation   at   issue   and   do   not   exceed   the
limits   of   what   is   appropriate   and   necessary
in   order   to   achieve   those   objectives:   see
Afton   Chemical   Ltd   v   Secretary   of   State   for
Transport   (Case  C­343/09)   [2010]   ECR   I­7027,
para 45; the Volker case [2010] ECR I­11063,
para   74;   Nelson   v   Deutsche   Lufthansa   AG
(Joined Cases C­581/10 and C­629/10) [2013] 1
All   ER   (Comm)   385,   para   71;   Sky   Osterreich
GmbH   v   Osterreichischer   Rundfunk   (Case   C­
283/11) [2013] All ER (EC) 633, para 50; and
Schaible v Land Baden­ Wiirttemberg (Case C­
101/12)  EU:C:2013:66I;   17   October   2013,  para

29.”

144.   United   Kingdom   Supreme   Court   in  AB   Vs.   Her
Majesty's Advocate, [2017]  UK SC 25, held  that it  is

not   for   the   Court   to   identify   the   alternative

measures,   which   may   be   least   intrusive.     In   Para   37

and 39, following has been held:­

“37.  I  am   not  persuaded.  It   is  important  to
recall   that   the   question   of   whether   the
Parliament   could   have   used   a   less   intrusive
measure   does   not   involve   the   court   in
identifying  the  alternative  measure  which   is
least   intrusive.   The   court   allows   the
legislature   a   margin   of   discretion   and   asks
whether the limitation on the
article 8
right
is   one   which   it   was   reasonable   for   the
Parliament   to   propose:   Bank   Mellat   v   HM
Treasury   (No   2)   [2013]   UKSC   38,   [2014]   AC
700, para 75 per Lord Reed;

39. The balance, which this court is enjoined
to address, is different. It is the question
of a fair balance between the public interest
and the individual's right to respect for his
or   her   private   life   under
article   8.
The
question   for   the   court   is,   in   other   words,
whether   the   impact   of   the   infringement   of
that right is proportionate, having regard to
the   likely   benefit   of   the   impugned
provision.”

145.   The biometric information which are obtained for

Aadhaar   enrolment   are   photographs,   fingerprints   and

iris   scan,   which   are   least   intrusion   in   physical

autonomy of an individual.  U.S. Supreme Court in
John

Davis   Vs.   State   of   Mississippi
,   394   US   721   (1969),
indicated   that   Fingerprinting   involves   none   of   the

probing into an individual's private life and thoughts

that   marks   an   interrogation   or   search.     The   physical

process   by   which   the   fingerprints   are   taken   does   not

require   information   beyond   the   object   and   purpose.

Therefore, it does not readily offend those principles

of dignity and privacy, which are fundamental to each

legislation of due process.   One of the apprehension,

which   was   expressed   by   petitioners   that   since   as   per

definition   of   biometric   information   contained   in

Section   2(g)
,   further,   biological   attributes   of   an

individual may be specified by regulations, which may

be   more   intrusive.
Section   2(g)
use   the   word   “such

biological attributes”.  Thus, applying the principles

of   ejusdem   generis,   the   biological   attributes   can   be

added by the regulations, has to be akin to one those

mentioned   in
Section   2(g)
,   i.e.   photographs,

fingerprints and iris scan.  In event, such biological

attributes is added by regulations, it is always open

to   challenge   by   appropriate   proceedings   but   the   mere

fact that by regulations any such biometric attributes
can   be   added,   there   is   no   reason   to   accept   the

contention   that   biological   attributes,   which   can   be

added may be disproportionate to the objective of the

Act.     Biometric   information,   thus,   which   is   to   be

obtained   for   enrolment   are   not   disproportionate   nor

the   provisions   of   Aadhaar   Act   requiring   demographic

and   biometric   information   can   be   said   to   be   not

passing   three­fold   test   as
laid   down   in

Puttaswamy

(supra)  case.   We, thus, answer Issue Nos. 1 and 2 in

following manner:­

Ans.1 and 2:­   (i) requirement   under   Aadhaar   Act

to give one's  demographic   and

biometric information does not  violate

fundamental right of privacy.

(ii) The   provisions   of   Aadhaar   Act   requiring

demographic   and   biometric   information

from a  resident   for   Aadhaar   Number

pass   three­fold   test   as
laid   down   in

Puttaswamy
(supra)  case, hence cannot

be said to be unconstitutional.
ISSUE NOS.3,4 COLLECTION,   STORAGE,   RETENTION,   USE,
AND 5 SHARING AND SURVEILLACE.

146.    The  Aadhaar  Act  provides  complete architecture

beginning with enrolment. The enrolment means process

to collect demographic and biometric information from

individuals   by   enroling   agencies.   The   enroling

agencies have to set up enrolment centers and have to

function in accordance with the procedure specified by

UIDAI.
Section   8
contemplates   for   authentication   for

Aadhaar   number   which   authentication   was   done   by

authority.   When   a   request   is   made   for   identification

by   any   requesting   entity   in   respect   to   biometric   or

demographic information of Aadhaar number holder, the

authority may engage one or more entities to establish

and maintain central identity data repository.
Section
provides   for   the   security   and   confidentiality   of

information which is to the following effect:

28.   (1)   The   Authority   shall   ensure   the
security   of   identity   information   and
authentication records of individuals.
(2)   Subject   to   the   provisions   of   this   Act,
the Authority shall ensure confidentiality of
identity   information   and   authentication
records of individuals.

(3)   The   Authority   shall   take   all   necessary
measures   to   ensure   that   the   information   in
the   possession   or   control   of   the   Authority,
including   information   stored   in   the   Central
Identities   Data   Repository,   is   secured   and
protected   against   access,   use   or   disclosure
not   permitted   under   this   Act   or   regulations
made   thereunder,   and   against   accidental   or
intentional destruction, loss or damage.

(4) Without prejudice to sub­sections (1) and
(2), the Authority shall—

(a)   adopt   and   implement   appropriate
technical   and   organisational
security measures;

(b)   ensure   that   the   agencies,
consultants,   advisors   or   other
persons   appointed   or   engaged   for
performing   any   function   of   the
Authority   under   this   Act,   have   in
place   appropriate   technical   and
organisational security measures for
the information; and

(c)   ensure   that   the   agreements   or
arrangements   entered   into   with   such
agencies,   consultants,   advisors   or
other   persons,   impose   obligations
equivalent   to   those   imposed   on   the
Authority   under   this   Act,   and
require   such   agencies,   consultants,
advisors   and   other   persons   to   act
only   on   instructions   from   the
Authority.

(5) Notwithstanding anything contained in any
other   law   for   the   time   being   in   force,   and
save   as   otherwise   provided   in   this   Act,   the
Authority   or   any   of   its   officers   or   other
employees   or   any   agency   that   maintains   the
Central Identities Data Repository shall not,
whether   during   his   service   or   thereafter,
reveal any information stored in the Central
Identities   Data   Repository   or   authentication
record to anyone:

Provided   that   an   Aadhaar   number
holder   may   request   the   Authority   to
provide   access   to   his   identity
information   excluding   his   core
biometric information in such manner
as may be specified by regulations.

147.
The Act
contains specific provision providing that

no core biometric information collected under the Act

is  shared to anyone for any reason  whatsoever or use

for   any   purpose   other   than   generation   of   Aadhaar

number   or   authentication   under   this   Act.   The   statute

creates   injunction   for   requesting   entity   to   use

identity   information   data   for   any   purpose   other   than

that   specified   to   the   individual   at   the   time   for

submitting any identification.
Section 29
provides for

not   sharing   information   collected   or   created   under

this Act, which is to the following effect:

“29.   (1)   No   core   biometric   information,
collected   or   created   under   this   Act,   shall
be—
(a)   shared   with   anyone   for   any
reason whatsoever; or

(b) used for any purpose other than
generation   of   Aadhaar   numbers   and
authentication under this Act.

(2) The identity information, other than core
biometric   information,   collected   or   created
under   this   Act   may   be   shared   only   in
accordance   with   the   provisions   of   this   Act
and   in   such   manner   as   may   be   specified   by
regulations.

(3) No identity information available with a
requesting entity shall be—

(a) used for any purpose, other than
that   specified   to   the   individual   at
the   time   of   submitting   any   identity
information   for   authentication;   or
Security   and   confidentiality   of
information.

(b)   disclosed   further,   except   with
the   prior   consent   of   the   individual
to whom such information relates.

(4)   No   Aadhaar   number   or   core   biometric
information   collected   or   created   under   this
Act   in   respect   of   an   Aadhaar   number   holder
shall   be   published,   displayed   or   posted
publicly, except for the purposes as may be
specified by regulations.”

148.
Section   30
itself   contemplates   that   biometric

information   are   sensitive   personal   data   or

information. There are strict conditions envisaged in

Section   33
for   disclosure   of   information.   The
disclosure of information is contemplated only on two

contingencies.   Firstly,   when   an   order   is   passed   by   a

Court   not   inferior   to   that   of   District   Judge   and

secondly   when   the   disclosure   is   made   in   the   interest

of   national   security   in   pursuance   of   a   direction   of

the officer not below the rank of Joint Secretary to

the Government of India.

149.
Chapter   VII   of   the   Act
deals   with   the   offences

and   penalties   for   impersonation   at   the   time   of

enrolment   penalty   for   disclosing   identity   information

is   provided   under
Sections   34
to
.
Section   38

provides for penalty who accesses or secures access to

the   Central   Identities   Data   Repository.
Section   39

provides   for   penalty   who     uses   or   tampers   with   the

data   in   the   Central   Identities   Data   Repository.

Section   40
provides   for   penalty   whoever,   being   a

requesting entity, uses the identity information of an

individual   in   contravention   of   sub­section   (3)   of

section   8
.
Section   41
deals   with   penalty   for   non­

compliance   by   an   enrolling   agency   or   requesting
entity.
Section 42
deals with general penalty.
Section
is as follows:

“42.   Whoever   commits   an   offence   under   this
Act   or   any   rules   or   regulations   made
thereunder   for   which   no   specific   penalty   is
provided   elsewhere   than   this   section,   shall
be   punishable   with   imprisonment   for   a   term
which may extend to one year or with a fine
which   may   extend   to   twenty­five   thousand
rupees or, in the case of a company, with a
fine which may extend to one lakh rupees, or
with both.”

150.   Regulations   have   been   framed   under   the   Act,

namely,   (1)   The   Aadhaar   (Enrolment   and   Update)

Regulations,   2016,   (2)   The   Aadhaar   (Authentication)

Regulations,   2016,   (3)   The   Aadhaar   (Data   Security)

Regulations,   2016   and   (4)   The   Aadhaar   (Sharing   of

Information) Regulations, 2016.

151.   We have already noticed the detailed submissions

of   learned   counsel   for   UIDAI.   Following   are   the

measures by which     Security   Data   of   privacy   is

ensured. The   security and data privacy is ensured in

the following manner:­

i. The   data   sent   to   ABIS   is   completely
anonymised. The ABIS systems do not have
access   to   resident’s   demographic
information  as   they   are   only   sent
biometric information  of a resident with
a reference number and  asked   to   de­
duplicate. The de­duplication result with
the reference number is mapped  back   to
the   correct   enrolment   number   by   the
Authorities own enrolment server.

ii. The   ABIS   providers   only   provide   their
software and services. The data is stored
in  UIDAI   storage   and   it   never   leaves
the secure  premises.

iii. The   ABIS   providers   do   not   store   the
biometric  images   (source).   They   only
store template for  the purpose of de­
duplication (with reference number)
iv. The   encrypted   enrolment   packet   sent   by
the  enrolment   client   software   to   the
CIDRis  decrypted   by   the   enrolment
server but the  decrypted   packet   is
never stored.

v. The   original   biometric   images   of
fingerprints, iris and face are archived
and  stored   offline.   Hence,   they   cannot
be  accessed through an online network.

vi. The   biometric   system   provides   high
accuracy  of   over   99.86%.   The   mixed
biometric have been  adopted   only   to
enhance   the   accuracy   and   to   reduce   the
errors which may arise on account of some
residents either not having biometrics or
not having some particular  biometric.

152. After   the   enrolment   and   allotting   an   Aadhaar

number   to   individual   the   main   function   of   the

authority   is   authentication   of   an   Aadhaar   number
holder  as and when request  is made  by the requesting

agency.   The   authentication   facility   provided   by   the

authority   is   under
Section   3
of   the   Authentication

Regulations, 2016 which is to the following effect:

“3. Types of Authentication.—
There shall be two types of authentication
facilities   provided   by   the   Authority,
namely—

(i)   Yes/No   authentication   facility,
which   may   be   carried   out   using   any   of
the modes specified in regulation 4(2);

and

(ii)   e­KYC   authentication   facility,
which may be carried out only using OTP
and/   or   biometric   authentication   modes
as specified in regulation 4(2).”

153.   Various  modes  of  authentication  are  provided  in

Regulation 4
of Authentication Regulations 2016, which

are:   Demographic   authentification;   One   time   pin­based

authentication;   Biometric­based   authentification   and

Multi­factor authentification. A requesting entity may

choose suitable mode of authentication for particular

function or business function as per its requirement.
154.
Regulation   7
provides   for   capturing   biometric

information   by   requesting   entity   which   is   to   the

following effect:

“7.   Capturing   of   biometric   information   by
requesting entity.—
(1)   A   requesting   entity   shall   capture   the
biometric   information   of   the   Aadhaar   number
holder   using   certified   biometric   devices   as
per   the   processes   and   specifications
laid
down by
the Authority.

(2)   A   requesting   entity   shall   necessarily
encrypt and secure the biometric data at the
time   of   capture   as   per   the   specifications

laid down by
the Authority.

(3)   For   optimum   results   in   capturing   of
biometric   information,   a   requesting   entity
shall adopt the processes as may be specified
by   the  Authority  from  time   to  time   for  this
purpose.”

155.
Regulation   9
deals   with   process   of   sending

authentification   requests.   Sub­Regulation   (1)   of

Regulation 9
contends the safe method of transmission

of the authentication requests.

156.   The   Aadhaar   (Data   Security)   Regulations,   2016

contain   detail   provisions   to   ensuring   data   security.

Regulation   3
deals   with   measures   for   ensuring

information   security.
Regulation   5
provides   security
obligations of the agencies, consultants, advisors and

other   service   providers   engaged   by   the   Authority   for

discharging any function relating to its processes.

157. The Aadhaar (Sharing of Information) Regulations,

2016   also   contain   provisions   providing   for

restrictions   on   sharing   identity   information.   Sub­

Regulation   (1)   of
Regulation   3
provides   that   core

biometric information collected by the Authority under

the Act shall not be shared with anyone for any reason

whatsoever.

158.   Sharing   of   Information   Regulations,   2016   also

contain   various   other   restrictions.
Regulation   6

contains   restrictions   on   sharing,   circulating   or

publishing of Aadhaar number which is to the following

effect:

“6.  Restrictions   on   sharing,   circulating   or
publishing of Aadhaar number. —
(1) The Aadhaar number of an individual shall
not   be   published,   displayed   or   posted
publicly by any person or entity or agency.
(2)   Any   individual,   entity   or   agency,   which
is   in   possession   of   Aadhaar   number(s)   of
Aadhaar number holders, shall ensure security
and   confidentiality   of   the   Aadhaar   numbers
and of any record or database containing the
Aadhaar numbers.

(3)  Without  prejudice   to   sub­regulations   (1)
and   (2),   no   entity,   including   a   requesting
entity, which is in possession of the Aadhaar
number   of   an   Aadhaar   number   holder,   shall
make public any database or record containing
the   Aadhaar   numbers   of   individuals,   unless
the   Aadhaar   numbers   have   been   redacted   or
blacked   out   through   appropriate   means,   both
in print and electronic form.

(4) No entity, including a requesting entity,
shall   require   an   individual   to   transmit   his
Aadhaar number over the Internet unless such
transmission is secure and the Aadhaar number
is transmitted in encrypted form except where
transmission   is   required   for   correction   of
errors or redressal of grievances.

(5) No entity, including a requesting entity,
shall retain Aadhaar numbers or any document
or   database   containing   Aadhaar   numbers   for
longer   than   is   necessary   for   the   purpose
specified to the Aadhaar number holder at the
time of obtaining consent.”

159.  The scheme of the Aadhaar Act indicates that all

parts   of   the   entire   process   beginning   from   enrolment

of   a   resident   for   allocation of   Aadhaar   number   are

statutory regulated.

160.   The   Authentication   Regulations,   2016   also   limit

the period for retention of logs by requesting entity.
Regulation 18(1)
which is relevant in this context is

as follows:

“18.   Maintenance   of   logs   by   requesting
entity.­
(1)   A   requesting   entity   shall   maintain   logs
of   the   authentication   transactions   processed
by   it,   containing   the   following   transaction
details, namely:—

(a) the Aadhaar number against which
authentication is sought;

(b)   specified   parameters   of
authentication request submitted;

(c) specified parameters received as
authentication response;

(d)   the   record   of   disclosure   of
information   to   the   Aadhaar   number
holder at the time of authentication;

and

(e) record of consent of the Aadhaar
number holder for authentication, but
shall   not,   in   any   event,   retain   the
PID information.”

161.   The   residents’   information   in   CIDR   are   also

permitted   to   be   updated   as   per   provisions   of   the

Aadhaar   (Enrolment   and   Update)   Regulations,   2016.   An

over view of the entire scheme of functions under the

Aadhaar   Act   and   Regulations   made   thereunder   indicate

that   after   enrolment   of   resident,   his   informations
including   biometric   information   are   retained   in   CIDR

though   in   encrypted   form.   The   major   function   of   the

authority   under   Aadhaar   Act   is   authentication   of

identity   of   Aadhaar   number   holder     as   and   when

requests   are   made   by   requesting   agency,   retention   of

authentication   data   of   requesting   agencies   are

retained for limited period as noted above. There are

ample safeguards for security and data privacy in the

mechanism which is at place as on date as noted above.

162.   Shri   Shyam   Divan,   learned   senior   counsel

appearing   for   the   petitioners   has   passionately

submitted that entire process of authentication as is

clear   from   actual   working   of   the   Aadhaar   programme

reveals that Aadhaar Act enables  the State to put the

entire   population   of   the   country   in   an   electronic

leash   and   they   are   tracked   24   hours   and   7   days.   He

submits   that   putting   the   entire   population   under

surveillance is nothing but converting the State into

a    totalitarian   State.   Elaborating   his   submission,

Shri   Divan   submits   that   process   of   authentication

creates   authentication   records   of   (1)   time   of
authentication, (2) identity of the requesting entity.

Both   requesting   entity   and   UIDAI   have   authentication

transactions   data   which   record   the   technical   details

of   transactions.   The   devices   which   are   used   by   the

requesting   entities   have   IP   address   which   enables

knowledge   about   geographical   information   of   Aadhaar

number holder with knowledge of his location, details

of   transaction,   every   person   can   be   tracked   and   by

aggregating the relevant data the entire population is

put   on   constant   surveillance.   Aadhaar   programme

endeavours   all   time   mass   surveillance   by   the   State

which   is   undemocratic   and   violates   the   fundamental

rights of individual.

163.   The meta   data   regarding   authentication

transactions   which   are   stored   with   the   authority   are

potent   enough   to   note   each   and   every   transaction   of

resident   and   to   track   his   activities   is   nothing   but

surveillance.
Regulation   26
of   Authentication

Regulations,   2016   provides   storage   of   meta   data

related   to   the   transaction.
Regulation   26
which   is

relevant is as follows:
“26.   Storage   and   Maintenance   of
Authentication   Transaction   Data.   —  (1)   The
Authority   shall   store   and   maintain
authentication   transaction   data,   which   shall
contain the following information:—

(a)   authentication   request   data
received including PID block;

(b)   authentication   response   data
sent;

(c)   meta   data   related   to   the
transaction;

(d)   any   authentication   server   side
configurations   as   necessary   Provided
that the Authority shall not, in any
case,   store   the   purpose   of
authentication.”

164. We may first notice as to what is meta data which

is   referred   to   in
Regulation   26
above.   The   UIDAI

receives   the   requests   for   authentication   of   ANH.   The

request   for   authentication   received   by   requesting

agency   does   not   contain   any   information   as   to   the

purpose   of   authentication   neither   requesting   agency

nor   UIDAI   has   any   record   pertaining   to   purpose   for

which authentication has been sought by Aadhaar number

holder. The meta data referred to in
Regulation 26(c)

is only limited technical meta data.
165.   Shri   Kapil   Sibal   had   submitted   that   CIDR   holds

the   entire   Aadhaar   database   retained   by   CIDR.   It   has

become a soft target for internal/external/ indigenous

/foreign   attacks   and   single   point   of   failure.   Shri

Sibal has referred to a RBI report which states:

“Thanks to Aadhaar, for the first time in the
history   of   India,   there   is   now   a   readily
available   single   target   for   cyber   criminals
as well as India’s external enemies. In a few
years,   attacking   UIDAI   data   can   potentially
cripple   Indian   businesses   and   administration
in   ways   that   were   inconceivable   a   few   years
ago. The loss to the economy and citizens in
case   of   such   an   attack   is   bound   to   be
incalculable.”

166.  He has further submitted that a digital world is

far more susceptible to manipulation than the physical

world.   No   legislation   can   or   should   allow   an

individual’s personal data  to be put  at risk, in the

absence   of   a   technologically   assured   and   safe

environment. Such level of assurance is impossible to

obtain in the digital space. Biometric, core biometric

and   demographic   information   of   an   individual,   once

part   of   the   digital   world   is   irretrievable:   a   genie

out of the bottle that cannot be put back. The digital

world is a vehicle to benefit the information economy.
A   move   from   an   information   economy   to   creating   an

architecture   for   an   information   polity   has   far

reaching   consequences   impacting   the   most   personal

rights,   protected   by   the   right   to   privacy.   The

technology   acquired   by   the   UIDAI   has   also   been

criticised by the Opaque Foreign Technologies.

167.  The above submissions have been strongly refuted

by   learned   Attorney   General   and   learned   counsel

appearing   for   the   UIDAI.   It   is   submitted   by   the

respondents that the above submissions regarding mass

surveillance have been made on misconception regarding

actual operation of the entire process.

168. The   meta   data   which   is   aggregation   of

authentication   transactions   does   not   contain   any

detail   of   actual   transaction   done   by   ANH.   In   the

event, in a period of 30 days, 30 requesting agencies,

may   be   one   or   different,   have   requested   for

authentication   the   UIDAI   has   only   the   recipient   of

demographic/biometric   of   ANH   authentication   without

any   information   regarding   purposes   of   authentication.
Thus,   even   if   authentication   details   are   aggregated,

there   is   no   information   with   the   UIDAI   regarding

purpose   of   authentication   nor   authentication   leaves

for any trail so as to keep any track by UiDAI to know

the   nature   of   transaction   or   to   keep   any   kind   of

surveillance as alleged.
Section 32
sub­section (3) of

the   Aadhaar   Act   specifically   prohibits   the   authority

from   collecting   or   maintaining   either   directly   or

indirectly   any   information   for   the   purpose   of

authentication.

169.     Proviso   to
Regulation   26
is   also   to   the   same

effect i.e. provided that the authority shall not, in

any case, store the purpose of authentication.

170.    Elaborating on CIDR, Shri Dwivedi submits that

CIDR   is   a   centralised   database   which   contains   all

Aadhaar   numbers   issued   with   corresponding   demographic

and biometric information. It is a “Protected System”

notified   under
Section   70
of   Information   Technology

Act, 2000. The storage involves end to end encryption,

logical   partitioning,   fire   walling   and   anonymisation
of   decrypted   biometric   data.   The   encryption   system

follows a private key/public model and the private key

is   available   only   with   UIDAI   at   the   processing

location.   Hence   even   if   data   packets   are   lost   or

stolen   the   biometric   information   regarding   the   same

cannot   be   accessed.   At   the   CIDR   there   is   multi­layer

technological   security   to   afford   protection   from

hacking, and there is also deployment of armed forces

to prevent unauthorised physical access into the CIDR

Area. Additionally entry is electronically controlled.

There are CIDR at two location already and some other

locations are likely to be set up to ensure that data

is   not   lost   even   in   the   remote   eventuality   of   a

disaster. The CIDR is centrally managed.  The   templates

of   finger prints   and   iris   data   are   generated   in   ISO

format   and   the   same   along   with   demographic   data   and

photo are stored securely in the authentication server

database. This database is used for authentication in

the   manner   provided   in   Aadhaar   (Authentication)

Regulation 2016.
171.     In   view   of   above,   the   apprehension   raised   by

Shri   Kapil   Sibal   that   CIDR   is   a   soft   target   is

misplaced.

172.   To   support   his   submission,   Shri   Shyam   Divan,

learned counsel for the petitioner has placed reliance

on   judgment   of   the   United   States   Supreme   Court   in

United States vs. Antoine Jones, 132 S.Ct. 945 (2012).

173.     A   large   number   of   foreign   judgments   touching

various aspects of accumulation of data, retention of

data, surveillance, has been cited by both the parties

to support their respective stand.  It is necessary to

have an over view of the opinion expressed by various

Courts   in   other   countries   of   the   world.   The   present

age   being   the   age   of   technology   and   information,   the

issues pertaining to storage and retention of personal

data in different contexts have come up before several

Courts   of   different   countries   which   also   need   to   be

noted.

174. The   petitioners   have   relied   on   European   Court,

Human Rights in  S. and Marper vs. The United Kingdom,
2008   (48)EHRR     50.  The   applicants,   S   and   Marper   had

submitted two applications against the United Kingdom,

Great Britain and Northern Ireland under
Article 34
of

the Convention for the Protection of Human Rights and

Fundamental   Freedoms   (the   Convention).   The   applicants

complained   that   the   authorities   had   continued   to

retain their fingerprints and cellular samples and DNA

profiles   after   the   criminal   proceedings   against   them

had ended with an acquittal or had been discontinued.

The applicants had applied for judicial review of the

police   decisions   not   to   destroy   the   fingerprints   and

samples   which   application   was   rejected.   The   Court   of

appeal   upheld   the   decision   of   the   Administrative

Court.   The   House   of   Lords   had   also   dismissed   the

appeal on 22nd July, 2004. The House of Lords had taken

the   view   that   the   mere   retention   of   fingerprints   and

DNA   samples   did   not   constitute   an   interference   with

the right to respect for private life but stated that,

if   he   were   wrong   in   that   view,     he   regarded   any

interference as very modest indeed.
175.   BARONESS   HALE   disagreed   with   the   majority

considering that the retention of both fingerprint and

DNA data constituted an interference by the State in a

person’s   right   to   respect   for   his   private   life   and

thus required justification under the Convention. The

application   of   the   applicant   was   taken   by   European

Court   of   Human   Rights   (Strasbourg   Court).   The

Strasbourg Court noticed that majority of the Council

of Europe member States allow the compulsory taking of

fingerprints   and   cellular   samples   in   the   context   of

criminal   proceedings.   The   United   Kingdom   is   the   only

member   State   expressly   to   permit   the   systematic   and

indefinite   retention   of   DNA   profiles   and   cellur

samples   of   persons   who   have   been   acquitted   or   in

respect   of   whom   criminal   proceedings   have   been

discontinued.

176.   Strasbourg Court held that  the mere storing of

data   relating   to   the   private life   of   an   individual

amounts   to   an   interference   within   the   meaning   of

Article   8.
It   was   further   held   that   in   determining

whether   the   personal   information   retained   by   the
authorities   involves   any   of   the   private­life   aspects

mentioned above, the Court will have due regard to the

specific context in which the information at issue has

been recorded and retained.  In paragraph 67 following

has been laid down:

“67....However,   in   determining   whether
the   personal   information   retained   by   the
authorities  involves   any   of  the  private­life
aspects mentioned above, the Court will have
due   regard   to   the specific   context   in   which
the   information   at   issue   has   been   recorded
and retained, the nature of the records, the
way   in   which   these   records   are   used   and
processed   and   the   results   that   may   be
obtained  (see,   mutatis   mutandis,   Friedl,
cited   above,   49­51,   and   Peck   v.   The   United
Kingdom, cited above, 59).”

177.  Following was laid down in paragraph 73  &  77:

“73. Given   the   nature   and   the   amount   of
personal   information   contained   in   cellular
samples,   their   retention  per   se  must   be
regarded   as   interfering   with   the   right   to
respect   for   the   private   lives   of   the
individuals   concerned.   That   only   a   limited
part   of   this   information   is   actually
extracted or used by the authorities through
DNA profiling and that no immediate detriment
is   caused   in   a   particular   case   does   not
change this conclusion (see Aman cited above,

69).

77. In   view   of   the   foregoing,   the   Court
concludes that the retention of both cellular
samples and DNA profiles discloses an
interference   with   the   applicants’   right   to
respect   for   their   private   lives,   within   the
meaning of
Article 8(1)
of the Convention.”

178.   The Court also considered the issue of retention

of   fingerprints,   and   held   that   retention   of

fingerprints   may   also   give   rise   to   important   private

life concerns. The Court also held that the domestic

law must afford appropriate safeguards to prevent any

such use of personal data as may be inconsistent with

the   guarantees   of
Article   8.
Following   was   held   in

paragraph 103:

“103. The   protection   of   personal   data   is
of   fundamental   importance   to   a   person’s
enjoyment of his or her right to respect for
private   and   family   life,   as   guaranteed   by

Article 8
of the Convention. The domestic law
must afford appropriate safeguards to prevent
any   such   use   of   personal   data   as   may   be
inconsistent   with   the   guarantees   of   this
Article   (see  mutatis   mutandis,   Z.,   cited
above
,   95).
The   need   for   such safeguards   is
all   the   greater   where   the   protection   of
personal data undergoing automatic processing
is   concerned,   not   least   when   such   data   are
used   for   police   purposes.   The   domestic   law
should   notably   ensure   that   such   data   are
relevant and not excessive in relation to the
purposes   for   which   they   are   stored;   and
preserved   in   a   form   which   permits
identification   of   the   data   subjects   for   no
longer   than   is   required   for   the   purpose   for
which those data are stored.”

179.     United   Kingdom   Supreme   Court   had   occasion   to

consider   the   issue   of   retention   of   data   in  Regina

(Catt)   v.   Association   of   Chief   Police   Officers   of

England, Wales and Northern Ireland and another,(2015)

2 WLR 664 – (2015) UKSC 9. The UK Supreme Court in the

above case also noticed the judgment of Strasbourg in

S. and Marper v. The United Kingdom. The appeal before

UK   Supreme   Court   was   concerned   with   the   systematic

collection   retention   by   police   authorities   of

electronic   data   about   individuals   and   whether   it   is

contrary to
Article 8
of the European Convention. The

appellant   before   the   Court   had   accepted   that   it   was

lawful for the police to make a record of the events

in   question   as   they   occurred,   but   contends   that   the

police interfered with their rights under
Article 8
of

the Convention by thereafter retaining the information

on   a   searchable   database.   After   noticing   the

jurisprudence   of   the   European   Court   of   Human   Rights

Lord  Sumption stated following in paragraph 33:
“33. Although   the   jurisprudence   of   the
European Court of Human Rights is exacting in
treating   the   systematic   storage   of   personal
data   as   engaging
article   8
and   requiring
justification, it has consistently recognised
that   (subject   always   to   proportionality)
public   safety   and   the   prevention   and
detection   of   crime   will   justify   it   provided
that   sufficient   safeguards   exist   to   ensure
that personal information is not retained for
longer   than   is   required   for   the   purpose   of
maintaining   public   order   and   preventing   or
detecting crime, and that disclosure to third
parties   is   properly   restricted:   see
Bouchacourt v France, given 17 December 2009,
paras   68­69,   and   Brunet   v.   France
(Application   No.21010/10)   (unreported)   given
18   September   2014,   para   36.   In   my   opinion,
both   of   these   requirements   are   satisfied   in
this case. Like any complex system dependent
on   administrative   supervision,   the   present
system   is not   proof   against   mistakes.   At
least   in   hindsight,   it   is   implicit   in   the
2012   report   of   HMIC   and   the   scale   on   which
the database was weeded out over the next two
years that the police may have been retaining
more   records   than   the   Code   of   Practice   and
the MOPI guidelines really required. But the
judicial   and   administrative   procedures   for
addressing   this   are   effective,   as   the   facts
disclosed on this appeal suggest.”

180.    The preponderance of authorities on the subject

of   retention   of   data   is   that   retention   of   personal

data   effecting   personal   life   of   an   individual   may

interfere   in   his   right   of   privacy   and   the   State   can

justify   its   retention   subject   to   proportionality   and
subject   to   there   being   sufficient   safeguards   to

personal   information   is   not   retained   for   longer   than

it required.

181.   Reverting   back   to   the   Aadhaar   Act,   it   is   clear

that   requesting   entity   as   well   as   authority   are

required   to   retain   authentication   data   for   a

particular   period   and   thereafter   it   will   be   archived

for   five   years   and   thereafter   authentication   data

transaction shall be deleted except such data which is

required by the Court in connection with any pending

dispute.     We   had   already   noticed   that   data   which   is

retained   by   the   entity   and   authority   for   certain

period   is   minimal   information   pertaining   to   identity

authentication   only   no   other   personal   data   is

retained.   Thus,   provisions   of   Aadhaar   Act   and

Regulations made thereunder fulfill three fold test as

laid   down   in
Puttaswamy
case   (supra),  hence,   we

conclude that storage and retention of data does not

violate fundamental right of privacy.
182.  Now, we come to issue of surveillance, which has

been very strongly raised by petitioners.   Shri Shyam

Divan, learned counsel for the petitioners has relied

on judgment of U.S. Supreme Court in United States Vs.

Antoine Jones, 132 S.Ct. 945 (2012).   Antoine Jones,

owner and operator of a nightclub was under suspicion

of   trafficking   in   narcotics.    A   warrant   was   issued

authorising   installation   of   an   electronic   tracking

device   on   the   jeep   registered   in   the   name   of   John's

wife.   Agents installed a GPS tracking device in the

jeep when it was parked in a public parking.   On the

basis of data obtained from the device, the Government

charged Jones for several offences.   In trial, Jones

found a locational data obtained form the GPS device.

A verdict of guilt was returned, which on appeal was

reversed   by   United   States,   Appeal   for   District

Columbia.

183.     Matter   was   taken   to   the   U.S.   Supreme   Court.

Fourth Amendment provides  “the right of the people to

be   secured   in   their   persons,   houses,   papers,   and

effects,   against   unreasonable   searches   and   seizures,
shall not be violated.” Justice Scalia, delivering the

opinion of the Court affirmed the judgment of Court of

Appeal.  Justice Sotomayor concurring wrote:­

“I join the Court's opinion because I agree
that   a   search   within   the   meaning   of   the
Fourth   Amendment   occurs,   at   a   minimum,
“[w]here,   as   here,   the   Government   obtains
information   by   physically   intruding   on   a
constitutionally   protected   area.”   Ante,   at
950,   n.   3.   In   this   case,   the   Government
installed a Global Positioning System (GPS)
tracking device on respondent Antoine Jones'
Jeep   without   a   valid   warrant   and   without
Jones'   consent,   then   used   that   device   to
monitor the Jeep's movements over the course
of four weeks. The Government usurped Jones'
property   for   the   purpose   of   conducting
surveillance   on   him,   thereby   invading
privacy   interests   long   afforded,   and
undoubtedly   entitled   to,   Fourth   Amendment
protection.   See,   e.g.,   Silverman   v.   United
States, 365 U. S. 505, 511­512 S1 S.Ct. 679,
5 L.Ed.2d 734 (1961). ”

184.  The above case was a case where tracking device,

i.e.,   GPS   was   installed   in   the   vehicle   with   purpose

and   motive   of   surveillance   and   obtaining   data   to   be

used   against   Jones.     Present   is   not   a   case   where   it

can be said that Aadhaar infrastructure is designed in

a   manner   as   to   put   a   surveillance   on   Aadhaar   number

holder (ANH).
185.   Another judgment which is relied  by Shri  Shyam

Divan is judgment of European Court of Human Rights in

Strasbourg Court in  Roman Zakharov Vs. Russia  decided

on   04.12.2015.     In   the   above   case,   the   applicant

alleged   that   the   system   of   secret   interception   of

mobile telephone communications in Russia violated his

right   to   respect   for   his   private   life   and

correspondence and that he did not have any effective

remedy in that respect.   In Para 148 of the judgment,

the case  of the applicant was noted in the  following

words:­

“148.     The   applicant   complained   that   the
system   of   covert   interception   of   mobile
telephone   communications   in   Russia   did   not
comply with the requirements of
Article 8
of
the Convention, which reads as follows:­

“1.     Everyone   has   the   right   to
respect   for   his   private   and   family
life,   his   home   and   his
correspondence.

2.  There shall be no interference by
a public authority with the exercise
of   this   right   except   such   as   is   in
accordance   with   the   law   and   is
necessary in a democratic society in
the   interests   of   national   security,
public   safety   or   the   economic   well­
being   of   the   country,   for   the
prevention of disorder or crime, for
the   protection   of   health   or   morals,
or   for   the   protection   of   the   rights
and freedoms of others.”

186.  The Court came to the following conclusion:­

"175.     The   Court   notes   that   the   contested
legislation   institutes   a   system   of   secret
surveillance   under   which   any   person   using
mobile telephone services of Russia providers
can   have   his   or   her   mobile   telephone
communications intercepted, without ever being
notified of the surveillance.  To that extent,
the   legislation   in   question   directly   affects
all users of these mobile telephone services.”

187.     The   Strasbourg   Court   held   that   there   had   been

violation of
Article 8
of the Convention.   The  above

case   also   does   not   help   the   petitioners   in   reference

to Aadhaar structure.   Above case was a clear case of

surveillance   by   interception   of   mobile

telecommunication.

188.   Another judgment relied by  Shri Shyam Divan is

Digital   Rights   Ireland   Ltd.   Vs.   Minister   for

Communications,   Marine   and   Natural   Resources  decided

on 08.04.2014.  Para 1 of the judgment notice:­

"These   requests   for   a   preliminary   ruling
concern  the  validity   of  Directive   2006/24/EC
of the European Parliament and of the Council
of   15   March   2006   on   the   retention   of   data
generated or processed in connection with the
provision   of   publicly   available   electronic
communications   services   or   of   public
communications   networks   and   amending
Directive 2002/58/EC(OJ 2006 L 105, p. 54).”

189.     Directive   2006/24   laid   down   the   obligation   on

the  providers   of   publicly   available   electronic

communications   services   or   of   public   communications

networks to retain certain data which are generated or

processed   by   them.     Noticing   various   articles   of   the

Directives, the Court in Paragraph 27 noted:­

“27. Those data, taken as a whole, may allow
very   precise   conclusions   to   be   drawn
concerning   the   private   lives   of   the   persons
whose   data   has   been   retained,   such   as   the
habits   of   everyday   life,   permanent   or
temporary places of residence, daily or other
movements,   the   activities   carried   out,   the
social relationships of those persons and the
social environments frequented by them.”

190.     The   directives   were   held   to   be   violating   the

principles   of   proportionality.     The   above   case   was

also   a   case   of   retaining   data   pertaining   to

communications by service providers.  The retention of

communication   data   is   a   clear   case   of   intrusion   in

privacy.   The above is also a case which in no manner
help the petitioners when contrasted with the Aadhaar

architecture.

191.   At   this   juncture,   we   may   also   notice   one

submission raised by the petitioners that Aadhaar Act

could have devised a less intrusive measure/means.  It

was   suggested   that   for   identity   purpose,   the

Government   could   have   devised   issuance   of   a   smart

card, which may have contained a biometric information

and retain it in the card itself, which would not have

begged   the   question   of   sharing   or   transfer   of   the

data.     We   have   to   examine   the   Aadhaar   Act   as   it

exists. It is not the Court's arena to enter into the

issue as to debate on any alternative mechanism, which

according   to   the   petitioners   would   have   been   better.

Framing a legislative policy and providing a mechanism

for   implementing   the   legislative   policy   is   the

legislative domain in which Court seldom trench.

192.  We may refer to a judgment of U.K. Supreme Court

AB   Vs.   Her   Majesty's   Advocate,   [2017]   UKSC   25,   where

U.K.   Supreme   Court   has   not   approved   the   arguments
based   on   less   intrusive   means.    Court   held   that

whether   the   Parliament   would   have   used   a   less

intrusive   means   does   not   involve   the   Court   in

identifying   an   alternative   measure,   which   is   least

intrusive.  In Para 37, following has been laid down:­

“37.  I  am   not  persuaded.  It   is  important  to
recall   that   the   question   of   whether   the
Parliament   could   have   used   a   less   intrusive
measure   does   not   involve   the   court   in
identifying  the  alternative  measure  which   is
least   intrusive.   The   court   allows   the
legislature   a   margin   of   discretion   and   asks
whether the limitation on the
article 8
right
is   one   which   it   was   reasonable   for   the
Parliament   to   propose:   Bank   Mellat   v   HM
Treasury   (No   2)   [2013]   UKSC   38,   [2014]   AC
700, para 75 per Lord Reed; Animal Defenders
International v United Kingdom (2013) 57 EHRR
21, para 110. Had the 2009 Act provided that
the   reasonable   belief   defence   would   not   be
available   if   on   an   earlier   occasion   the
accused   had   been   charged   with   an   offence
which   itself   objectively   entailed   a   warning
of   the   illegality   of   consensual   sexual
activity   with   older   children,   the   fact   that
there   were   other   options,   which   were   less
intrusive,   to   restrict   the   availability   of
that defence would not cause an infringement
of   the   individual's
article   8
right.   The
problem for the Lord Advocate in this appeal
is where to find such a warning. ”

193.     We   may   profitably   note   the   judgment   of   Privy

Council   arising   from   a   decision   of   Supreme   Court   of
Mauritius   –  Madhewoo   Vs.   State   of   Mauritius.       The

case   relates   to   a   national   identity   card,   which   was

brought   in   effect   by   an   Act   namely,   the   National

Identity   Card   Act,   1985   providing   for   adult   citizens

of   Mauritius   to   carry   identity   cards.
The   Act
was

amended   in   2013   by   which   Government   introduced   a   new

smart   identity   card,   which   incorporates   on   a   chip   on

the   citizen's   fingerprints   and   other   biometric

information   relating   to   his/her   characteristics.     A

citizen of the Republic of Mauritius did not apply for

National Identity Card and he challenged the validity

of the 2013 Act.   The Supreme Court of Mauritius held

that   the   provisions   of   1985   Act,   which   enforce   the

compulsory   taking   and   recording   of   fingerprints   of   a

citizen disclosed an interference with the appellant’s

rights   guaranteed   under
Section   9(1)
of   the

Constitution.   The
Section 9(1)
provided “except with

his   own   consent,   no   person   shall   be   subject   to   the

search   of   his   person   or   his   private   or   the   entry   by

others   in   his   premises.”     Supreme   Court   had   rejected

the   challenge   to   the   other   provisions   of   the
Constitution.   Matter was taken to the Privy Council.

The   challenge   made   before   the   Privy   Council   was

noticed   in   Para   7   of   the   judgment,   which   is   to   the

following effect:­

“7.   In   this   appeal   the   appellant   challenges
the   constitutionality   of   (a)   the   obligation
to   provide   fingerprints   and   other   biometric
information under
section 4
, (b) the storage
of   that   material   on   the   identity   card   under

section   5
,   (c)   the   compulsory   production   of
an identity card to a policeman under
section
7(1A)
in response to a request under
section
7(1)(b)
, and (d) the gravity of the potential
penalties   under
section   9(3)
for   non­
compliance.   He   claims,   first,   that   the
implementation   of   the   new   biometric  identity
card is in breach of
sections 1
,
,
,
,
,
,
,
,
and
of the   Constitution
coupled   with
article   22
of   the   Civil   Code
(which   provides   that   everyone   has   the   right
to respect for his private life and empowers
courts with competent jurisdiction to prevent
or end a violation of privacy) and, secondly,
that the collection and permanent storage of
personal   biometric   data,   including
fingerprints,   on   the   identity   card   are   in
breach of those sections of the Constitution
and that article of the Civil Code. ”

194.     The   Privy   Council   agreed   with   the   decision   of

the   Supreme   Court   that   compulsory   taking   of

fingerprints   and   the   extraction   of   minutiae   involved

an interference with the appellant’s
Section 9
rights
which   required   to   be   justified   under
Section   9(2)
.

The challenge raised before the Privy Council has been

noticed   in   Para   25,   which   challenges   were   repelled.

Paras 25 and 26 are as follows:­

“25.   The   appellant   challenges   the   Supreme
Court’s   evaluation   because,   he   submits,   the
creation   of   a   reliable   identity   card   system
does   not   justify   the   interference   with   his
fundamental   rights.   He   submits   that   the
obligation   to   provide   his   fingerprints
interferes   with   his   right   to   be   presumed
innocent   and   also   that   an   innocuous   failure
to   comply   with
section   4(2)(c)
could   give
rise   to   draconian   penalties   under
section
9(3)
of   the   Act   (para   6   above).   He   also
points   out   that   in   India   a   proposal   for   a
biometric   identity   card   was   held   to   be
unconstitutional, and, in the United Kingdom,
libertarian   political   opposition   resulted   in
the   repeal   of   legislation   to   introduce
biometric   identity   cards.   The   interference,
he submits, is disproportionate.

26. In the Board’s view, these challenges do
not undermine the Supreme Court’s assessment.
First,   the   requirement   to   provide
fingerprints   for   an   identity   card   does   not
give rise to any inference of criminality as
it   is   a   requirement   imposed   on   all   adult
citizens.   It   is   true   that,   if   circumstances
arose in which a police officer was empowered
to   require   the   appellant   to   produce   his
identity   card   and   the   government   had   issued
card   readers,   the   authorities   would   have
access to his fingerprint minutiae which they
could use for the purposes of identification
in   a   criminal   investigation.   But   that   does
not   alter   the   presumption   of   innocence.
Secondly,   the   penalties   in
section   9(3)
are
maxima   for   offences,   including   those   in

section   9(1)
,   which   cover   serious   offences
such   as   forgery   and   fraudulent   behaviour   in
relation   to   identity   cards.   The   subsection
does   not   mandate   the   imposition   of   the
maximum  sentence   for   any   behaviour.  Thirdly,
while   judicial   rulings   on   international
instruments   and   the   constitutions   of   other
countries   can   often   provide   assistance   to   a
court   in   interpreting   the   provisions
protecting fundamental rights and freedoms in
its   own   constitution,   the   degree   of   such
assistance will depend on the extent to which
the documents are similarly worded. ”

195.   As   noticed   above,   learned   counsel   for   the

petitioners   has   raised   various   issues   pertaining   to

security   and   safety   of   data   and   CIDR.     Apprehensions

raised by the petitioners does not furnish  any  ground

to struck down the enactment or a legislative policy.

This   Court   in
G.   Sundarrajan   Vs.   Union   of   India   and

Others
.   (2013)   6   SCC     620,   had   occasion   to   consider

India's   National   Policy   and   challenge   to   a   Nuclear

Project,   which   was   launched   by   the   Government

upholding the legislative policy, the Court laid down

following in Paras 15 and 15.1:­

“15. India's National Policy has been clearly
and   unequivocally   expressed   by   the
legislature   in   the
Atomic   Energy   Act
.
National   and   International   policy   of   the
country   is   to   develop   control   and   use   of
atomic   energy   for   the   welfare   of   the   people
and for other peaceful purposes. NPP has been
set up at Kudankulam as part of the national
policy which is discernible from the Preamble
of   the   Act   and   the   provisions   contained
therein.   It   is   not   for   Courts   to   determine
whether   a   particular   policy   or   a   particular
decision taken in fulfillment of a policy, is
fair.   Reason   is   obvious,   it   is   not   the
province   of   a   court   to   scan   the   wisdom   or
reasonableness   of   the   policy   behind   the
Statute.

15.1.  Lord MacNaughten in Vacher & Sons Ltd.

v.   London   Society   of   Compositors   (1913)   AC
107  HL has stated:

“......Some   people   may   think   the
policy   of   the   Act   unwise   and   even
dangerous to the community......But a
Judicial   tribunal   has   nothing   to   do
with the policy of any Act which it
may be called upon to interpret. That
may be a matter for private judgment.

The duty of the Court, and its only
duty,   is   to   expound   the   language   of
the   Act   in   accordance   with   the
settled rules of construction.”

196.     This   Court   also   held   that   a   project   cannot   be

stopped merely on the ground of apprehension.   In the

present   case,   also   lot   of   apprehensions   of

possibilities   of   insecurity   of   data   has   been   raised.

In   India,   there   is   no   specific   data   protection   laws
like   law   in   place   in   United   Kingdom.
In   Privacy

judgment –
Puttaswamy
(supra), this Court has noticed

that  Shri Krishna Commission  is already examining the

issue regarding data protection and as has been stated

by   learned   Attorney   General   before   us,   after   the

report   is   received,   the   Government   will   proceed   with

taking   steps   for   bringing   a   specific   law   on   data

protection.     We   need   not   say   anything   more   on   the

above   subject.     After   we   have   reserved   the   judgment,

Srikrishna   Commission   has   submitted   its   report

containing a draft Personal Data Protection Bill, 2018

in   July   2018.   The   report   having   been   submitted,   we

hope   that   law   pertaining   to   Personal   Data   Protection

shall   be   in   place   very   soon   taking   care   of   several

apprehensions expressed by petitioners.

197.     The   Aadhaar   architecture   is   to   be   examined   in

light   of   the   statutory   regime   as   in   place.     We   have

noticed   the   regulations   framed   under   Aadhaar   Act,

which   clearly   indicate   that   regulations   brings   in

place   statutory   provisions   for   data   protection,

restriction   on   data   sharing   and   other   aspects   of   the
matter.   Several provisions of penalty on data breach

and   violation   of   the   provisions   of   the   Act   and

regulations have been provided.

198.  We have no reason to doubt that the project will

be   implemented   in   accordance   with   the   Act   and   the

Regulations   and   there   is   no   reason   to   imagine   that

there will be statutory breaches, which may affect the

data   security,   data   protection   etc.
In   view   of

foregoing   discussions,   we   are   of   the   considered

opinion   that   Statutory   regime   as   delineated   by   the

Aadhaar   Act   and   the   Regulations   fulfills   the   three­

fold test as
laid down  in

Puttaswamy
(supra)  and the

law,   i.e.   Aadhaar   Act   gives   ample   justification   for

legitimate   aim   of   the   Government   and   the   law   being

proportional to the object envisaged. The petitioners

during   their   submissions   have   also   attacked   various

provisions   of   Enrolment   and   Update   Regulations,

Authentication   Regulations,   Data   Security   Regulations

and Sharing of Information Regulations. All the above

regulations   have   been   framed   in   exercise   of   power

under
Section 54
of the Act on the matters covered by
the   Act.

We   having   held   that   by   collection   of   data,

its   retention,   storage,   use   and   sharing,   no   Privacy

Right   is   breached,   we   are   of   the   view   that   related

regulations   also   pass   the   muster   of   three­fold   tests

as
laid   down   in

K.Puttaswamy
case.   The   provisions   of

Act   in   the   above   regard   having   passed   the   muster   of

three­fold tests, the related regulations also cannot

be held to breach Right of Privacy. Thus, challenge to

regulations   relating   to   collection,   storage,   use,

retention and sharing fails and it is held that they

do   not   violate   Constitutional   Rights   of   Privacy.     In

result,   we   answer   the   Issue   Nos.   3,   4   and   5   in

following manner:­

Ans. 3, 4, 5:­

(i)   Collection   of   data,   its   storage   and   use

does   not   violate   fundamental   Right   of

Privacy.

(ii)   Aadhaar Act does not create an architecture

for pervasive surveillance.

(iii) Aadhaar   Act   and   Regulations   provides

protection and safety of the data received
from individuals.

Whether   Section   7   OF   Aadhaar   Act   is
Issue Nos. unconstitutional?

6 and 7
Whether   right   to   food,   shelter   etc.
envisaged   under
Article   21
shall   take
precedence on the right to privacy  of the
beneficiaries?

199.     Shri   Pandit   Jawahar   Lal   Nehru   while   concluding

debate on “Aims and Objects Resolution” on 22.01.1947

in the Constituent Assembly  of India stated:

“The   first   task   of   this   Assembly   is   to
free India through a new constitution to feed
the   starving   people   and   cloth   the   naked
masses   and   to   give   every   Indian   fullest
opportunity   to   develop   himself   according   to
his   capacity.   This   is   certainly   a   great
task.”

200. After attaining the freedom the country proceeded

to realise the dream and vision which founding fathers

of   our   democratic   system   envisaged.   The   Constitution

of   India   apart   from   enumerating   various   Fundamental

Rights   including   right   to   life   has   provided   for

Directive Principles of State Policy under Chapter IV

of   the   Constitution   which   was   to   find   objectives   in
governess   of   the   country.
Article   38
provided   that

State   shall   strive   to   promote   the   welfare   of   the

people by securing and protecting as effectively as it

may a social order in which justice, social, economic

and   political,   shall   inform   all   the   institutions   of

the national life. It further provided that the State

shall,   in   particular,   strive   to   minimise   the

inequalities   in   income,   and   endeavour   to   eliminate

inequalities   in   status,   facilities   and   opportunities,

not   only   amongst   individuals   but   also   amongst   groups

of   people   residing   in   different   areas   or   engaged   in

different vocations.

201. After enforcement of the Constitution almost all

the   Governments   worked   towards   the   object   of

elimination   of   poverty   and   to   empower   marginal/poor

section   of   the   society.   The   endeavour   of   the

Government   was   always   to   frame   policies   keeping   in

view the “little Indian” who is in the centre of all

policies and governance.

202.   Section   7   of   the   Aadhaar   Act   is   the   most

important   provision   of   the   Aadhaar   Act   around   which
entire   architecture   of   Aadhaar   Act   has   been   built.

Section 7
is to the following effect:

“7.   The   Central   Government   or,   as   the   case
may   be,   the   State   Government   may,   for   the
purpose   of   establishing   identity   of   an
individual   as   a   condition   for   receipt   of   a
subsidy,   benefit   or   service   for   which   the
expenditure is incurred from, or the receipt
therefrom   forms   part   of,   the   Consolidated
Fund   of   India,   require   that   such   individual
undergo   authentication,   or   furnish   proof   of
possession   of   Aadhaar   number   or   in   the   case
of   an   individual   to   whom   no   Aadhaar   number
has   been   assigned,   such   individual   makes   an
application   for   enrolment:   Provided   that   if
an   Aadhaar   number   is   not   assigned   to   an
individual,   the   individual   shall   be   offered
alternate   and   viable   means   of   identification
for   delivery   of   the   subsidy,   benefit   or
service.”

203.     The   objects   and   reasons   of   the   Act   as   noticed

above   as   well   as   the   Preamble   of   the   Act   focus   on

targeted   delivery   of   financial   and   other   subsidies,

benefits   and   services   which   are   envisaged   in   Section

7. The petitioners challenge the constitutionality of

Section 7
. They submit that
Section 7
seeks to render

the   constitutional   and   statutory   obligations   of   the

State   to   provide   benefits,   subsidies   and   services,

conditional upon an individual parting with his or her
biometric and demographic information. An individual’s

rights and entitlements cannot be made dependent upon

an invasion of his or her bodily integrity and his or

her   private   information   which   the   individual   may   not

be   willing   to   share   with   the   State.   The   bargain

underlying
Section   7
is   an   unconscionable,

unconstitutional   bargain.   An   individual   has

constitutional   right   to   receive   benefits,   subsidies

and   services   which   is   fundamental   right   and   it   is

State’s obligation to provide for fulfillment of that

fundamental   right.   He   submitted   that   there   is   no

rationale in enactment of
Section 7
neither there was

any   legitimate   state   interest   nor   the   provision   is

proportionate.   The   petitioners   submit   that   provision

of requiring every person to undergo authentication to

avail   benefits/services/   entitlements,   falls   foul   of

Article   14.
Since,   firstly   such   mandatory

authentication   has   caused,   and   continues   to   cause,

exclusion of the most marginalised section of society;

and   secondly   this   exclusion   is   not   simply   a   question

of   poor   implementation   that   can   be   administratively
resolved, but stems from  the very design of the Act.

Learned   counsel   for   the   petitioners   have   referred   to

and   relied   on   several   materials   in   support   of   their

submissions   that   working   of
Section   7
has   caused

exclusion.   Since   a   large   number   of   persons   who   are

entitled   to   receive   benefits,   subsidies   and   services

are   unable   to   get   it   due   to   not   being   able   to

authenticate   due   to   various   reasons   like   old   age,

change of biometric and other reasons. The petitioners

have   referred   to   affidavits   filed   by   several

individuals   and   NGOs   who   after   field   verification

brought   materials   before   this   Court   to   support   their

submission   regarding   large   scale   exclusion.  It   is

further   contended   that   State’s   contention   that

Circular   dated   24.10.2017   has   resolved   implementation

issued   cannot   be   accepted.   The   authentication   system

in   the   Aadhaar   Act   is   probabilistic.   Biometric

technology does not guarantee 100% accuracy and it is

fallible,   refers   UIDAI’s   own   Report   on   “Role   of

Biometric Technology in Aadhaar Entrolment” (2012) has

been made where Report stated that biometric accuracy
after   accounting   for     the   biometric   failure   to   enrol

rate,   false   positive   identification   rate,   and   false

negative   identification   rate,   was   99.768%   accuracy.

For   a   population   over   119.22   crore   enrolled   in

Aadhaar, it is  a  shocking admission of  the fact that

there   are   27.65   lakh   people   who   are   excluded   from

benefits   linked   to   Aadhaar.   It   is   contended   that

validity of an act is to be judged not by its object

or   form,   but   by   its   effect   on   fundamental   rights.

Mandatory authentication at the point of use violates

Article   21.
It   is   contended   that   the   Government   has

failed to discharge its burden of proof under Article

21. The State has also failed to satisfy the test of

proportionality   which   makes
Section   7

unconstitutional.

204.  The petitioners further submit that the claim of

the   Government   that   by   Aadhaar   authentication   the

State   has   been   able   to   save   11   billion   per   annum   is

incorrect     and   without   any   basis.   It   is   further

submitted   that   massive   savings   under  Mahatma   Gandhi

National   Rural   Employment   Guarantee   Scheme   under
Financial Benefits Accrued on account for DBT/Aadhaar

since 2014 claims of substantial savings upto 2015­16

the   amount   of   reported   savings   is   shown   as   Rs.3000

crores   and   upto   2016­17   it   is   shown   as   Rs.11,741

crores. Referring to the claim of the Government that

he  submitted  facts  of job cards could be  only 67,637

were   found   to   be   job   cards   linked   to   more   than   one

Aadhaar   number.   Thus,   maximum   saving   for   this   period

would be 127.88 crores compared to the inflated figure

of   Rs.3000   crores.     The   Financial   Benefits   claimed

under   PAHAL   scheme   was   Rs.14,672   crores   which   is   not

correct. Referring to Comptroller and Auditor General

Report, it is pointed out that with respect to  2014­

15, the real outcome  of savings is  only 1.33 crores.

He   submits   that   major   saving   was   on   account   of

decrease in off­take of domestic subsidised cylinders

of   consumer   and   decrease   in   fuel   prices.   On   Public

Distribution System referring to answer to a question

in   Lok   Sabha   on   26.07.2016   it   is   submitted   that   the

Minister   of   Consumer   Affairs,   Food   and   Public
Distribution   has   stated   only   that   approximately   2.33

crores ration cards were deleted during 2013­2016.

205. Learned Attorney General has referred to material

on   record   to   justify   the   legitimate   state   aim   which

led   to   enactment   of
Section   7
.   Learned   Attorney

General   refers   to   Report   No.3   of   2000   of   the

Comptroller   and   Auditor   General   of   India   which   has

been brought  on record as Annexure R­I  to the common

additional   affidavit   on   behalf   of   respondents.   He

submits   that   the   Comptroller   and   Auditor   General   in

his   Report   states   that   1.93   crore   bogus   ration   cards

were found to be  in circulation in  13 States. Report

further   states   that   a   signification   portion   of   the

subsidised food­grains and other essential commodities

did   not   reach   the   beneficiaries   due   to   their

diversion   in   the   open   market.   The   Performance   Report

of   the   Planning   Commission   of   India   titled

“Performance   Evaluation   Report   of   Targeted   Public

Distribution   System   (TPDS)”   dated   March,   2005   which

has   been   brought   on   record   as   Annexure­R­6     to   the
common   additional   affidavit   on   behalf   of   respondents

notes following:

i. State­wise figure of excess Ration Cards
in  various states and the existence of
over 1.52  crore  excess  Ration Cards
issued [Page 362 of  CAA]

ii. Exercise   of   fictitious   households   and
identification     errors     leading     to
exclusion     of genuine beneficiaries.

iii. Leakage   through   ghost   BPL   Ration   Cards
found to  be prevalent in almost all the
states under  study.[Pg. 369 of CAA)

iv.  The Leakage of food grains through ghost
cards  has   been   tabulated   and   the
percentage of such  leakage on an All
India basis has been estimated  at
16.67% [Pg.370 of CAA].

v. It is concluded that a large part of the
subsidised food grains were not reaching
the  target group.

206.     Similar   reports   regarding   few   subsidies   have

been referred and relied.

207.   Learned Attorney General has also relied on the
report   submitted   by   V.V.   Giri   National   Labour

Institute   and   sponsored   by   the   Department   of   Rural

Development, Ministry of Rural Development, Government

of   India   which   examined   various   aspects   of   National

Rural   Employment   Guarantee   Scheme   while   studying   the

schedule   of   rates   for   National   Rural   Employment

Guarantee Scheme. In paragraph 12.8 (Annesure R­4) to

the   common   additional   affidavit   on   behalf   of

respondents following has been stated:

2. “There   was   great   fraud   in   making   fake
cards,   muster   rolls   were   not   maintained
properly, and work was not provided to job
seekers   sometimes.   In   many   cases,   it   was
found   that   workers   performed   one   day’s
job,   but   their   attendance   was   put   for   33
days.   The   workers   got   money   for   one   day
while   wages   for   32   days   were
misappropriated   by   the   people   associated
with the functioning of NREGS.”

208.     Another   report   dated   09.11.2012   of   National

Institute   of   Public   Finance   and   Policy’s     “A   Cost­

benefit analysis of Aadhaar” estimated that a leakage

of   approximately   12   percent   is   being   caused   to   the

Government on account of ghost workers and manipulated

muster rolls. Thirteenth Finance Commission Report for
2010­2015 dated December, 2000 in Chapter 12 states:

“creation   of   a   biometric­based   unique
identity for all residents in the country has
the   potential   to   address   need   of   the
government   to   ensure   that   only   eligible
persons   are   provided   subsidies   and   benefits
and that all eligible persons are covered.”

209.   Various   other   reports   have   been   referred   to   and

relied by Learned Attorney General to substantiate his

case   that   there   was   large   leakage   and   pilferation   of

subsidies which were allocated by the Government under

different schemes.

210.   This   Court   had occasion   to   consider   public

distribution system in PUCL vs. Union of India, (2011)

14   SCC   331,    the   Court   noticed   the   report   of   High

Powered   Committee   headed   by   Justice   D.P.   Wadhwa,

retired   Judge   of   this   Court   who   had   submitted   report

on the Public Distribution System. One of the actions

suggested by the Committee was noticed in paragraphs 2

and 12 , Component II:

“2. In order to implement this system across
the   country,   the   following   actions   are
suggested by the Committee:

… … …
Component   II:   Electronic   authentication
of   delivery   and   payments   at   the   fair   price
shop   level.   In   order   to   ensure   that   each
card­holder   is   getting   his   due   entitlement,
computerisation  has  to   reach   literally   every
doorstep and this could take long. Moreover,
several   States   have   already   started
implementing   smart   cards,   food   coupons,  etc.
which   have   not   been   entirely   successful.
Reengineering   these   legacy   systems   and
replacing   it   with   the   online   Aadhaar
authentication   at   the   time   of   food­grain
delivery   will   take   time.   This   is   therefore
proposed as Component II.

12. As far as possible, the State Governments
should   be   directed   to   link   the   process   of
computerisation   of   Component   2   with   Aadhaar
registration.   This   will  help   in  streamlining
the   process   of   biometric   collection   as   well
as   authentication.   The   States/UTs   may   be
encouraged   to   include   the   PDs   related   KYR+
field   in   the   data   collection   exercise   being
undertaken   by   various   Registrars   across   the
country   as   part   of   the   UID   (Aadhaar)
enrolment.”

211.   This   Court   again   in   the   same   proceeding   passed

another   judgment   on   16.03.2012  PUCL   vs.   Union   of

India, (2013) 14 SCC 368 in which following was stated

in paragraphs 2 and 4:

“2.  There   seems   to   be   a   general   consensus
that   computerisation   is   going   to   help   the
public distribution system in the country in
a big way. In the affidavit it is stated that
the   Department   of   Food   and   Public
Distribution has been pursuing the States to
undertake   special   drive   to   eliminate
bogus/duplicate ration cards and as a result,
209.55 lakh ration cards have been eliminated
since 2006 and the annual saving of foodgrain
subsidy   has   worked   out   to   about   Rs   8200
crores per annum. It is further mentioned in
the affidavit that end­to­end computerisation
of   public   distribution   system   comprises
creation   and   management   of   digitised
beneficiary   database   including   biometric
identification   of   the   beneficiaries,   supply
chain   management   of   TPDS   commodities   till
fair price shops.

4.  In   the   affidavit   it   is   further   mentioned
that   the   Government   of   India   has   set   up   a
task   force   under   the   Chairmanship   of   Mr
Nandan   Nilekani,   Chairman,   UIDAI,   to
recommend, amongst others, an IT strategy for
the public distribution system. We request Mr
Nandan Nilekani to suggest us ways and means
by   which   computerisation   process   of   the
public   distribution  system   can   be   expedited.

Let   a   brief   report/affidavit   be   filed   by   Mr
Nandan   Nilekani   within   four   weeks   from
today.”

212.   As   noted   above   the   figures   as   claimed   by   the

respondents regarding benefits after implementation of

Aadhaar scheme in the MGNREGA and PDS etc. are refuted

by the petitioners. Petitioners’ case is that amounts

of   savings   which   are   claimed   are   not   correct   and   at

best there was only meager benefit of savings from the

implementation   of   the   scheme.     We   need   not   to   enter
into   the   issue   regarding   respective   claims   in   the

above   regard.   The   reasons   which   led   to   enactment   of

Section   7
that   benefits   and   subsidies   are

substantially diverted and are not able to reach have

been made out even if saving were not substantial but

meager.

213.   The report and material which have been brought

on   record   by   the   Government   fully   demonstrate   the

legitimate   aim   of   the   State   in   enacting
Section   7
.

This   Court   in
Francis   Coralie   Mullin   vs.

Administrator,   Union   Territory   of   Delhi   and   others
,

1981 (1)  SCC 608,  while elaborating on  right  of life

under
Article 21
, held that the right to life includes

the right to live with dignity and all that goes along

with   it   namely   the   bar   necessaries   of   life   such   as

adequate nutrition, clothing and shelter.

214.   The United Nation under Universal Declaration of

Human Rights also acknowledges everyone has a right to

standard   of   living   which   includes   food,   clothing,

housing   and   medical   care.
Article   25
of   the

Declaration which was made in 1948 is as follows:
“25.1 Everyone has the right to a standard
of   living   adequate   for   the   health   and   well­
being of himself and of his family, including
food,   clothing,     housing       and       medical
care   and
necessary   social   services,   and   the   right   to
security   in   the   event   of   unemployment,
sickness,   disability,   widowhood,   old   age   or
other   lack   of   livelihood   in   circumstances
beyond his control.”

215.   The English author, JOHN BERGER said:

“The poverty of our century is unlike that of
any other. It is not, as poverty was before,
the result of natural scarcity, but of a set
of   priorities   imposed   upon   the   rest   of   the
world   by   the   rich.   Consequently,   the   modern
poor   are   not   pitied...but   written   off   as
trash.”

216.   The identification of the poor, as was referred

by  John   Berger  is   the   first   step   to   realise   the   UN

Declaration of Human Rights as well as the Fundamental

Rights guaranteed under the Constitution of India. The

Aadhaar   Act   brings   into   existence   a   process   of

identification   which   is   more   accurate   as   compared   to

other identity proofs.
217.   At   this   stage,   we   need   to   notice   one   more

submission   which   was   raised by   the   learned   Attorney

General. It has been submitted by the learned Attorney

General that subsidies and benefits under Section 7 of

the   Aadhaar   Act   are   traceable   to
Article   21.
It   is

submitted   that   if   the   rights   which   are   sought   to   be

realised by means of
Section 7
are juxtaposed  against

the right of privacy, the former will prevail over the

latter.   The   issue   is   as   to   whether   the   State   by

enlivening   right   to   food   and   shelter   envisaged   under

Article 21
encroach upon the right of privacy ? There

cannot be a denial that there may be inter se conflict

between   fundamental   rights   recognised   by   the

Constitution in reference to a particular person. The

Court   has to   strive   a balance   to   leave   enough   space

for exercise of both the fundamental rights.

218.   It cannot be  accepted that while balancing the

fundamental   rights   one   right   has   to   be   given

preference.   We   may   notice   that   privacy   judgment   i.e.

Puttaswamy
case      has   noticed   and   already   rejected
this   argument   raised   by   the   learned   Attorney   General

in paragraph 266 in the following words:

“266.   The   Attorney   General   argued   before   us
that the right to privacy must be forsaken in
the interest of welfare entitlements provided
by   the   State.   In   our   view,   the   submission
that   the   right   to   privacy   is   an   elitist
construct   which   stands   apart   from   the   needs
and   aspirations   of   the   large   majority
constituting   the   rest   of   society,   is
unsustainable.   This   submission   betrays   a
misunderstanding   of   the   constitutional
position.   Our   Constitution   places   the
individual   at   the   forefront   of   its   focus,
guaranteeing   civil   and   political   rights   in
Part   III   and   embodying   an   aspiration   for
achieving   socio­economic   rights   in   Part   IV.
The  refrain  that  the   poor  need  no  civil  and
political rights and are concerned only with
economic well­being has been utilised through
history   to   wreak   the   most   egregious
violations of human rights....”

219.  One of the submissions which has been raised

by   the   petitioners   targeting   the   Aadhaar

authentication   is   that   biometric   system   under   the

Aadhaar   architecture   is   probabilistic.   Biometric

technology does not guarantee 100% accuracy and it is

fallible,   with   inevitable   false   positives   and   false

negatives   that   are   design   flaws   of   such   a

probabilistic system. We have noted above the reliance
on UIDAI’s Report of the year 2012 where UIDAI itself

has   claimed   that   biometric   accuracy   was   99.768%.   The

petitioner   is   still   criticising   that   since   .232%

failures   are   there   which   comes   to   27.65   lakh   people

who are excluded from benefits linked to Aadhaar. The

above submission of the petitioner ignores one aspect

of the matter as has been contended by the respondents

that in case where there is biometric mis­match of  a

person even possession of an Aadhaar number is treated

sufficient   for   delivery   of   subsidies   and   benefits.

Thus,   physical   possession   of   Aadhaar   card   itself   may

mitigate biometric mis­match. However, in case of mis­

match   instruments   are   there   to   accept   other   proof   of

identity,   the   respondents   have   referred   to   Circular

dated   24.10.2017   issued   by   UIDAI.   The   Circular   dated

24.10.2017   has   been   criticised   by   the   petitioners

stating   that   violation   of   right   cannot   be   left   to

vagaries   of   administration.   There   cannot   be   any

dispute   to   the   above   propositions.   It   is   the

obligation   of   the   State   to   ensure   that   there   is   no

violation of fundamental rights of a person.
Section 7
is   an   enabling   provision   which   empowers   the   State

Government   to   require   that   such   individual   undergo

authentication   for   receipt   of   a   subsidy,   benefit   or

service but neither
Section 7
nor orders issued by the

Central   Government   and   State   Government   can     be   read

that   in   the   event     authentication   of   a   person   or

beneficiary   fails,   he   is   not   to   be   provided   the

subsidies   and   benefits   or   services.   The   provision   is

couched as an enabling provision but it cannot be read

as a provision to negate giving subsidies, benefits or

services in the event of failure of authentication. We

are   of   the   view   that   Circular   dated   24.10.2017   which

fills   a   gap   and   is   a   direction   facilitating   delivery

of   benefits   and   subsidies   does   not   breach   by

provisions of the Act.

220.     Now,   we   come   to   arguments   of   exclusion   as

advanced   by   the   petitioners   in   support   of   their

submission   that   exclusion   makes
Section   7
arbitrary

and violative of
Articles 14
and
21.
From the material

brought on record by the parties, we have no reason to

doubt that there has been denial to few persons due to
failure of authentication. There is ample material on

record   to   indicate   that   prior   to   enforcement   of

Aadhaar   Scheme   there   had   been   large   number   of   denial

of benefits and subsidies to real beneficiaries due to

several reasons as noted above. Functioning of scheme

formulated by the Government for delivery of benefits

and   subsidies   to   deserving   persons   is   a   large   scale

scheme   running   into   every   nook   and   corner   of   the

country.   When   such   scheme   of   Government   is

implemented,   it   is   not   uncommon   that   there   may   be

shortcomings and some denial. There is no material on

record to indicate that as compared to non­receipt of

eligible   beneficiaries   prior   to   enforcement   of   the

Act,   there   is   increase   of   failure   after   the

implementation of the Act. It cannot be accepted that

few   cases   of   exclusion   as   pointed   out   by   the

petitioners   makes
Section   7
itself   arbitrary   and

violative   of
Articles   14
and
21.
Pitfalls   and

shortcomings   are   to   remove   from   every   system   and   it

has   been   fairly   submitted   by   the   learned   Attorney

General as well as learned counsel for the UIDAI that
as   and   when   difficulties   in   implementation   and   cases

of   denial   are   brought   into   the   notice,   remedial

measures are taken. The respondents are still ready to

take such remedial measures to ensure that there is no

denial of subsidies to deserving persons. We, however,

are   of   the   view   that   denial   of   delivery   of   benefits

and   subsidies   to   deserving   persons   is   a   serious

concern   and   violation   of   the rights   of   the   persons

concerned. It has to be tackled at all level and the

administration   has   to   gear   up   itself   and

implementation   authority   has   to   gear   up   itself   to

ensure that rightful beneficiaries are not denied the

constitutional benefits which have been recognised and

which   are   being   implemented   by   the   different   schemes

of   the   Government.   Both   the   Government   and   UIDAI   are

fully   empowered   to   make   Rules   and   Regulations   under

Sections 53 and 54 of the Aadhaar Act respectively and

exclusions   have   to   be   taken   care   by   exercising   the

power   under
Section   53
by   the   Central   Government   and

under
Section   54
by   the   UIDAI   to   remedy   such

shortcomings   and   denial.   We   are   sure   that   both   the
Central   Government   and   UIDAI   shall   advert   to   the

exclusionary factors.

221.   We may also notice a judgment of the US Supreme

Court in  Otis R. Bowen, Secretary of Health and Human

Services, et al. vs. Stephen J. Roy et al., 476 US 693

(1986).  The   US   Supreme   Court   held   that   statutory

requirement   that   a   state   agency   utilise   Social

Security   numbers   in   administering   the   programs   in

question   does   not   violate   the   Free   Exercise   Clause.

The   appellants   applied   and   received   benefits     under

the   Aid   to   Families   with   Dependent   Children   program

and the Food Stamp program. They, however, refused to

comply,   with   the   requirement   that   participants   in

these   programs   furnish   their   state   welfare   agencies

with   the   Social   Security   numbers   of   the   members   of

their household as a condition of receiving benefits.

Appellants   had   contended   that   obtaining   a   Social

Security   number   for   their   2­year­old   daughter,   would

violate   their   Native   American   religious   beliefs.   On

refusal to give Social Number, benefits payable to the

appellants   were   terminated.   The   claim   of   the
appellants was dismissed. The challenge raised by the

appellants was noticed in the following words:

“Appellees   raise   a   constitutional   challenge
to   two   features   of   the   statutory   scheme
here.4   They   object   to   Congress'   requirement
that   a   state   AFDC   plan   "must   .   .   .   provide
(A) that, as a condition of eligibility under
the plan, each applicant for or recipient of
aid   shall   furnish   to   the   State   agency   his
social security account number." 42 U.S.C. §
602(a)(25) (emphasis added). They also object
to   Congress'   requirement   that   "such   State
agency shall utilize such account numbers . .

. in the administration of such plan." Ibid.

(emphasis   added).5   We   analyze   each   of   these
contentions, turning to the latter contention
first.”

222.  The U.S. Supreme Court upheld the requirement of

providing   of   Social   Security   number.   Following   has

been observed:

“The   general   governmental   interests   involved
here   buttress   this   conclusion.   Governments
today   grant   a   broad   range   of   benefits;

inescapably   at   the   same   time   the
administration   of   complex   programs   requires
certain conditions and restrictions. Although
in some situations a mechanism for individual
consideration   will   be   created,   a   policy
decision   by   a   government   that   it   wishes   to
treat   all   applicants   alike   and   that   it   does
not   wish   to   become   involved   in   case­by­case
inquiries   into   the   genuineness   of   each
religious   objection   to   such   condition   or
restrictions is entitled to substantial
deference. Moreover, legitimate interests are
implicated   in   the   need   to   avoid   any
appearance   of   favoring   religious   over
nonreligious applicants.

The   test   applied   in   cases   like   Wisconsin   v.
Yoder, U.
S. 205
,
S.Ct. 1526, 32 L.Ed.2d 15
(1972),   is   not   appropriate   in   this   setting.

In the enforcement of a facially neutral and
uniformly   applicable   requirement   for   the
administration   of   welfare   programs   reaching
many   millions   of   people,   the   Government   is
entitled   to   wide   latitude.   The   Government
should not be put to the strict test applied
by the District Court; that standard required
the Government to justify enforcement of the
use of Social Security number requirement as
the  least   restrictive   means  of   accomplishing
a   compelling   state   interest.17   Absent   proof
of   an   intent   to   discriminate   against
particular   religious   beliefs   or   against
religion in general, the Government meets its
burden when it demonstrates that a challenged
requirement   for   governmental   benefits,
neutral and uniform in its application, is a
reasonable   means   of   promoting   a   legitimate
public interest.”

223.     Another   case   of   the   Appellate   Division   of   the

Supreme Court of the State of New York which needs to

be noticed is  in the matter of Buchanan v. Wing, 664

N.Y.   2d   865.  In   the   above   case   petitioners   were

recipients of Aid to Families with Dependent Children,

the   facts   of   the   case   have   been   noticed   in   the

following words:
“Petitioners   and   their   four   minor   children
are   recipients   of   Aid   to   Families   with
Department Children (hereinafter ADC) (Social
Services   Law     343   et   seq.)   and   food   stamps
from   the   Broome   County   Department   of   Social
Services   (hereinafter   the   Department).   In
February   1996,   petitioners   received     notice
from   the   Department   that   they   were   to
participate   in   an   identity   verification
procedure   known   as   the   automated   finger
imaging   system   (hereinafter   AFIS)   as   a
condition   of   eligibility   for   benefits
required   by   18   NYCRR   351.2(a)(245   A.D.   2d

635).   Petitioners   responded   that   they   would
not   participate   because   of   their   religious
convictions.   Respondent   Commissioner   of   the
Department   thereafter   discontinued   their   ADC
and   food   stamp   entitlements   for   failure   to
comply.”

224.     The   petitioners   refused   to   participate   in an

identify verification by procedure known as automated

finger   imaging   system   which   was   a   condition   of

eligibility   for   benefits.   Upholding   the   process   of

verification   by   finger   imaging   following   was   laid

down:

“We have examined petitioners’ constitutional
claims and find them to be without merit. In
our  view,   petitioners’   failure   to   articulate
a   viable   claim   that   they   are   being   required
to participate in an invasive procedure that
is   prohibited   by   their   religious   beliefs   is
dispositive   of   their   arguments claiming   a
violation of their freedom to exercise their
religion   pursuant   to   the   Federal   and   State
Constitutions (US Const 1st Amend; NY Const,
art   I,   3).   We   are   also   unpersuaded   by
petitioners’   contention   that   the   Department
violated   NY   Constitution,   article   XVII,   1
(which   provides   that   aid   and   care   of   the
needy   are   public   concerns   and   shall   be
provided by the State) by discontinuing their
public assistance benefits. Since petitioners
cannot be classified as needy until such time
as   they   are   finger   imaged   to   determine
whether   they   are   receiving   duplicate
benefits, no violation of this constitutional
provision has been stated. Moreover, contrary
to petitioners’ arguments, the discontinuance
of   public   assistance   to   their   entire   family
unit (see, 18 NYCRR 352.30)(245 A.D. 2d 637)
does   not   infringe   the   constitutional   rights
of   their   children   (who   are   not   named
petitioners   in   light   of   valid   legislation
premising   the   eligibility   of   the   children
within   the   family   unit   upon   the   eligibility
of   the   entire   household   (see,   Matter   of
Jessup v D’Elia, 69 N.Y. 2d 1030).”

225.     Another   judgment   which   has   been   relied   by   the

respondents   is  Doris   McElrath   v.   Joseph   A.   Califano,

Jr.,   Secretary   of   Health,   Education   and   Welfare,   615

F.2d   434.  Under   Social   Security   Act,   1935,   a   public

assistance   program   of   federal   and   state   cooperation

providing   financial   aid   to   needy   dependent   children

and   the   parents   or   relatives   with   whom   they   reside,

one   of   the   conditions   which   was   added   so   that   as   a

condition   of   eligibility   under   the   plan,   each
applicant for or recipient of aid shall furnish to the

State agency his social security account number.   The

contention   of the   appellant   was   noticed   in   paragraph

11 which is to the following effect:

“[11] The appellants' principal contention on
appeal   is   that   the   federal   and   state
regulations   requiring   dependent   children   to
acquire   and   submit   social   security   account
numbers   as   a   condition   of   eligibility   for
AFDC   benefits   are   statutorily   invalid   as
being inconsistent with and not authorized by
the
Social   Security   Act
.   We   find   the
arguments   advanced   in   support   of   this
contention to be without merit and hold that
the   challenged   regulations   constitute   a
legitimate   condition   of   eligibility   mandated
by   the   Congress   under   the
Social   Security
Act
. Accord, Chambers v. Klein, 419 F. Supp.
569   (D.N.J.   1976),   aff'd   mem.,   564   F.2d   89
(3d Cir. 1977); Green v. Philbrook, 576 F.2d
440   (2d   Cir.   1978);   Arthur   v.   Department   of
Social and Health Services, 19 Wn. App. 542,
576   P.2d   921   (1978).   We   therefore   conclude
that   the   district   court   properly   dismissed
the   appellants'   statutory   invalidity
allegations for failure to state a claim upon
which relief could be granted.”

226.  The appellant had also contended that disclosure

of   social   security   account   number   violates   their

constitutional   rights   to   privacy.   Said   argument   was
rejected.   While   rejecting   the   argument   following   was

stated in paragraph 20:

“[20]   Finally,   the   appellants   maintain   that
the social security account number disclosure
requirement   violates   their   constitutional
rights to privacy and to equal protection of
the   law.   We   disagree.   The   constitutional
guarantee   of   the   right   to   privacy   embodies
only those personal rights that can be deemed
"fundamental" or "implicit in the concept of
ordered   liberty."   Roe   v.   Wade,     :   410   U.
S.
,
,
S.Ct.  705,  726,   35  L.Ed.2d  147
(1973).   It   is   equally   well­settled   that
"[w]elfare   benefits   are   not   a   fundamental
right . . . ." Lavine v. Milne, 424 U.S. 577,
584,   n.   9,   96   S.Ct.   1010,   1015,   47   L.Ed.2d
249   (1976).   Accordingly,   we   regard   the
decision   of   Mrs.   McElrath   whether   or   not   to
obtain   social   security   account   numbers   for
her   two   minor   children   in   order   to   receive
welfare   benefits   as   involving   neither   a
fundamental right nor a right implicit in the
concept   of   ordered   liberty.   Chambers   v.

Klein,   419   F.   Supp.   569,   583   (D.N.J.   1976),
aff'd  mem.  564   F.2d  89   (3d  Cir.  1977).  This
case   is   not   concerned   with   a   decision
impacting   the   privacy   of   the   appellants   on
the   magnitude   of   criminal   sanctions   or   an
absolute   prohibition   on   the   appellants'
conduct. See, e. g., Griswold v. Connecticut,
:  381  U.S.   479,
S.Ct.   1678,   14  L.Ed.652d
510   (1965);   Eisenstadt   v.   Baird,:   405   U.S.
438,
S.Ct.   1029,   31   L.Ed.2d   349   (1972).

Rather,   it   is   concerned   with   a   condition   of
AFDC   eligibility   and   the   only   sanction   for
not   complying   is   to   forego   certain
governmental   benefits.   Simply   stated,   the
claim   of   the   appellants   to   receive   welfare
benefits   on   their   own   informational   terms
does   not   rise   to   the   level   of   a
constitutional   guarantee.   Moreover,   the
contention   that   disclosure   of   one's   social
security account number violates the right to
privacy   has   been   consistently   rejected   in
other related contexts. See, e.g., Cantor v.
Supreme   Court   of   Pennsylvania,   353   F.   Supp.

1307, 1321­22 (E.D.Pa. 1973); Conant v. Hill,
326 F. Supp. 25, 26 (E.D.Va. 1971).”

227.     The   trends   of   judgments   as   noted   above   do

indicate   that   condition   for   identification   or

disclosing particular identity number for receiving a

benefit   from   State   does   not   violate   any   of   the

Constitutional rights. We, thus, find   that
Section 7

fulfills   the   three   fold   tests   as   laid   down   in

Puttaswamy
case.

228.  Shri   Gopal   Subramanium   relying   on
Article   243G

and Eleventh Schedule of the Constitution submits that

Aadhaar   Scheme   and   its   authentication   for   benefits,

subsidies   and   services   militate   against   the   above

Constitution   provision   and   hence   are   ultra   vires   to

the   Constitution.
Article   243G
deals   with   powers,

authority and responsibilities of Panchayats, which is

to the following effect:­
243G.   Powers,   authority   and   responsibilities
of Panchayats:­  Subject to the provisions of
this Constitution the Legislature of a State
may,   by   law,   endow   the   Panchayats   with   such
powers and authority and may be necessary to
enable   them   to   function   as   institutions   of
self­government   and   such   law   may   contain
provisions   for   the   devolution   of   powers   and
responsibilities   upon   Panchayats,   at   the
appropriate level, subject to such conditions
as   may   be   specified   therein,   with   respect
to­­­

(a)   the   preparation   of   plans   for   economic
development and social justice;

(b)   the   implementation   of   schemes   for
economic   development   and   social   justice   as
may   be   entrusted   to   them   including   those   in
relation   to   the   matters   listed   in   the
Eleventh Schedule.

229.
Article 243G(b)
refers to Eleventh Schedule to the

Constitution.  Eleventh Schedule contains list of several

matters.  Shri Subramanium relies on Item No. 11, 12, 16,

17, 23, 25 and 28, which are as under:­

11. Drinking Water.

12. Fuel and Fodder.

16. Poverty alleviation programme.

17. Education,   including   primary   and   secondary

schools.
23. Health   and   Sanitation,   including   hospitals,

primary health centres and dispensaries.

25. Women and child development.

28. Public distribution system.

230.
Article 243G
is an enabling provision, which enable

the   State   Legislature,   by   law,   to   endow   the   Panchayats

with such powers and authorities as may be necessary to

enable   them   to  function   as   institutions   of   self­

government.   The Items on which State, by law, can endow

Panchayats   in   Eleventh   Schedule   are   items   to   deal   with

subjects   enumerated   therein.     For   example,   Item   No.   16

deals with Poverty alleviation programme and Item No. 28

deals   with   Public   Distribution   System.     State   is   fully

competent   to   make   laws   to   authorise   the   Panchayats   to

take   over   all   the   matters   enumerated   in   Eleventh

Schedule.  The question to be considered is as to whether

the   Aadhaar   Act   in   any   manner   militate   with

Constitutional   provisions   of
Article   243G.
The   Aadhaar

Act is an Act enacted by Parliament, which is referable

to Entry 97 of List I.  The Aadhaar Act has been enacted
to   provide   for  efficient,   transparent,   and   targeted

delivery   of   subsidies,   benefits   and   services,   the

expenditure   for   which   is   incurred   from   the   Consolidated

Fund   of  India,   to   individuals   residing   in   India  through

assigning of unique identity numbers to such individuals

and for matters connected therewith.
The Act
, thus, has

been   enacted   to   regulate   the   expenditure,   which   is

incurred   from   the   Consolidated   Fund   of   India.     No

conflict between the Aadhaar Act and any law, which may

be enacted by State under List II is seen.   Even if any

conflict is supposed, the Doctrine of Pith and Substance

has to be applied to find out nature of two legislations.

In Pith and Substance, the Aadhaar Act cannot be said to

be   entrenching   upon   any   law,   which   may   be   made   by   the

State   under   Item   No.5   of   List   II.     In   this   context,

reference is made to judgment of this Court in
State of

Uttar   Pradesh   and   Another   Vs.   Zila   Parishad,   Ghaziabad

and   Another
,   (2013)   11   SCC   783.    In
the   above   case
,

provisions   of
Article   243G
came   to   be   considered   in

reference   to   public   distribution   orders   issued   by   the

State   Government   in   exercise   of   delegated   powers   under
Essential Commodities Act, 1955
.   The Central Government

in   exercise   of   power   under
Section   3
of   the   Essential

Commodities  Act,   the   Government  of   U.P.  issued   an   order

dated 10.8.1999, conferring the power to allot and cancel

the   fair   price   shops   in   rural   areas,   with   certain

guidelines,   on   the   Gram   Panchayats.     Subsequently,   the

State   Government   withdrew   that   order   and   reinforced   the

earlier policy dated 03.07.1990 under which the power was

vested   with   the   District   Magistrate   or   an   authority

designated   by   him   to   allot   or   cancel   the   licenses   for

Fair Price Shops.  The Central Government, in exercise of

power   under
Section  3
of   the   Essential   Commodities   Act,

issued an order dated 31.8.2001, wherein its powers were

delegated   to   State   Government.     State   Government,   in

pursuance   thereof,   issued   an   order   designating   the

officers   of   the   District   level,   viz.,   District

Magistrate,   Sub­Divisional   Magistrate,   District   Supply

Officer  to   ensure   the   proper   supply  and  distribution   of

such commodities.   Zila Parishad, Ghaziabad filed a Writ

Petition   in   the   High   Court   challenging   the   Order   dated

13.01.2000 by which the power was withdrawn from the Gram
Panchayats.     The   Writ   Petition   was   allowed   by   the   High

Court   against   which   State   of   Uttar   Pradesh   filed   an

appeal.   The submission was raised before this Court on

behalf   of   the   writ   petitioner   that   denuding   the   power

from   Panchayats   will   be   against   the   constitutional

provision   of
Article   243G.
Such   argument   on   behalf   of

petitioner has been noticed in Paragraph 14.   This Court

after   considering   the   provisions   of
Article   243G
and

other relevant provisions has
laid down in
Paras 23 and

24:­

“23. The High Court has considered the nature
of the aforesaid constitutional provision and
held as under: (Zila Panchayat case1, AWC pp.
3981­82, para 16)

“16. In our opinion, this provision
is   only   an   enabling   provision.   It
enables   the   Legislature   of   a   State
to endow the Panchayats with certain
powers. … Hence, the Legislature of
a   State   is   not   bound   to   endow   the
Panchayats   with  the  powers  referred
to   Article  243­G,  and  it  is  in   its
discretion   to  do  so  or   not.  At   any
event   there   is   no   mention   of   the
public   distribution   system   in
Article 243­G of the Constitution.”

Thus, it is evident that the High Court has
taken   a   view   that   the   provision   of   Article
243­G is merely an enabling provision, and it
is   not   a   source   of   legislation.

This   view
seems to be in consonance with the law
laid
down   by
this   Court   in
U.P.   Gram   Panchayat
Adhikari Sangh  v.  Daya Ram Saroj4
wherein an
observation has been made that Article 243­G
is   an   enabling   provision   as   it   enables   the
Panchayats   to   function   as   institutions   of
self­government.   Further,   this   Court   noted
that such law may contain provisions for the
devolution   of   powers   and   responsibilities
upon   Panchayats,   subject   to   such   conditions
as may be specified therein, with respect to
the   implementation   of   schemes   for   economic
development   and   social   justice   as   may   be
entrusted   to   them,   including   those   in
relations   to   the   matters   listed   in   the
Eleventh   Schedule.   The   enabling   provisions
are further subject to the conditions as may
be specified. Therefore, it is for the State
Legislature   to   consider   conditions   and   to
make laws accordingly. It is also open to the
State to eliminate or modify the same.

24.  Therefore,   it   is   apparent   that   Article
243­G read with the Eleventh Schedule is not
a source of legislative power, and it is only
an   enabling   provision   that   empowers   a   State
to   endow   functions   and   devolve   powers   and
responsibilities to local bodies by enacting
relevant   laws.   The   local   bodies   can   only
implement   the   schemes   entrusted   to   them   by
the State.”

231.   This   Court
in
the   above   case
has   reiterated   that

Article 243G
read with Eleventh Schedule is not a source

of   legislative   power,   and   it   is   only   an   enabling

provision   that   empowers   a   State   to   endow   functions   and
devolve   powers   and   responsibilities   to   local   bodies   by

enacting relevant laws.   We, thus, are unable to accept

the submission of Shri Gopal Subramanium that Aadhaar Act

is ultra vires to
Article 243G
and Eleventh Schedule to

the Constitution.

232.   One   more   submission   of  the  petitioners  which   needs

to   be   considered   is   regarding   probabilistic   nature   of

biometric   solution.   We   proceed   on   premise   that   Aadhaar

structure   is   probabilistic,   the   petitioners   themselves

have   referred   to   UIDAI   Report   where   biometric   accuracy

has   been   stated   to   be   99.768%.   Stephen   Hawkin   in   his

book: “God Created The Integers” states:

“Over   the   centuries,   the   efforts   of   these
mathematicians have helped the human race to
achieve   great   insight   into   nature,   such   as
the realisation that the earth is round, that
the  same   force   that  causes   an  apple  to  fall
here   on   earth   is   also   responsible   for   the
motions of the heavenly bodies, that space is
finite   and   not   eternal,   that   time   and   space
are   intertwined   and   warped   by   matter   and
energy,   and   that   the   future   can   only   be
determined   probabilistically.   Such
revolutions in the way we perceive the world
have   always   gone   hand   in   hand   with
revolutions   in   mathematical   thought.   Isaac
Newton   could   never   have   formulated   his   laws
without   the   analytic   geometry   of   Rene
Descartes   and   Newton’s   own   invention   of
calculus.   It   is   hard   to   imagine   the
development   of   either   electrodynamics   or
quantum   theory   without   the   methods   of   Jean
Baptiste   Joseph   Fourier   or   the   work   on
calculus and the theory of complex functions
pioneered   by   Carl   Friedrich   Gauss   and
Augustin   Louis   Cauchy­   and   it   was   Henri
Lebesgue’s work on the theory of measure that
enabled   John   von   Neumann   to   formulate   the
rigorous understanding of quantum theory that
we have today. Albert Einstein could not have
completed   his   general   theory   of   relativity
had   it   not   been   for   the   geometric   ideas   of
Bernhard   Riemann.   And   practically   all   of
modern   science   would   be   far   less   potent   (if
it   existed   at   all)   without   the   concepts   of
probability   and   statistics   pioneered   by
Pierre­Simon Laplace.”

233.  The science and technology keeps on changing with

pace   of   time.   A   scientific   invention   or   module   which

is invented or launched keeps on improving with time.

The   ready   example   is   improvement   in   quality   and

programmes   of   mobile   phone   which   has   seen   steep

development   in   the   last   one   decade.   Even   if

authentication   under   Aadhaar   scheme   is   probabilistic

as   on   date,   we   have   no   doubt   that   the   steps   will   be

taken   to   minimise   the   mis­natch   and   to   attain   more

accuracy   in   the   result.     In   view   of   the   foregoing

discussion we are of the view that the State has given
sufficient   justification   to   uphold   the

constitutionality of
Section   7
.   We,   thus,   answer

Question Nos.6 and 7 in the following manner:

Ans.6:­
Section   7
of   the   Aadhaar   is

constitutional.   The   provision   does   not

deserve to be struck down on account of

denial in some cases of right to claim on

account of failure of authentication.

Ans.7:­ The State while enlivening right to food,

right   to   shelter   etc.   envisaged   under

Article 21
cannot encroach upon the right

of   privacy   of   beneficiaries   nor   former

can be given precedence over the latter.

Issue No.8 Whether   Section   29   of   the   Aadhaar   Act   is
liable to be struck down?

234. The   ground   to   challenge
Section   29
is   that   it

permits   sharing   of   identity   information.     It   is

submitted   that   sharing   of   identity   information   is

breach   of   Right   of   Privacy.
Section   29
is   a
provision,   which   contains   restrictions   on   sharing

information   as   is   clear   from   the   heading   of   the

section.
Section   29
sub­section   (1)   contains

prohibition   on   sharing   of   any   core   biometric

information   collected   or   created   under   this   Act.

Section 29
for ready reference is extracted as below:­

29.   Restriction   on   sharing   information.  (1)
No   core   biometric   information,   collected   or
created under this Act, shall be—

(a) shared with anyone for any reason
whatsoever; or

(b) used for any purpose other than
generation   of   Aadhaar   numbers   and
authentication under this Act.

(2) The identity information, other than core
biometric   information,   collected   or   created
under   this   Act   may   be   shared   only   in
accordance   with   the   provisions   of   this   Act
and   in   such   manner   as   may   be   specified   by
regulations.

(3) No identity information available with a
requesting entity shall be—

(a) used for any purpose, other than
that   specified   to   the   individual   at
the   time   of   submitting   any   identity
information for authentication; or

(b)   disclosed   further,   except   with
the   prior   consent   of   the   individual
to whom such information relates.
(4)   No   Aadhaar   number   or   core   biometric
information   collected   or   created   under   this
Act   in   respect   of   an   Aadhaar   number   holder
shall   be   published,   displayed   or   posted
publicly,   except   for   the   purposes   as   may   be
specified by regulations.

235.   Sub­section   (2)   permits   sharing   of   identity

information,   other   than   core   biometric   information,

only in accordance with the provisions of this Act and

in   such   manner   as   may   be   specified   by   regulations.

Further sub­section (3) prohibits requesting entity to

use   identity   information   for   any   purpose   other   than

that   specified   to   the   individual   or   to   disclose   any

information   without   the   consent   of   individual.     Sub­

section   (4)   provides   that   no   Aadhaar   number   or   core

biometric information shall be published, displayed or

posted   publicly,   except   for   the   purposes   as   may   be

specified   by   regulations.     The   attack   on
Section   29

that it permits sharing of information is thus wholly

misconceived.   The   objective   of   the   Act   is   to   protect

the   information   and   privacy   of   an   individual   and   so

the   Section   is   not   liable   to   be   struck   down   on   the

specious   ground   that   it   permits   sharing   of   the
information.   Further   sub­section   (3)   engraft   a

provision   of   sharing   identity   information   by

requesting   entity   with   consent   of   the   individual.

When   a   person   consents   about   sharing   of   his   identity

information,   he   cannot   complain   breach   of   Privacy

Right. Petitioners take exception of provision of sub­

section(2),   which   permits   identity   information   other

than   core   biometric   information   to   be   shared   in

accordance with the provisions of this Act and in such

manner  as may be  specified  by the regulations.   When

an Act or Regulation regulates and controls sharing of

the   information,   the   provision   is   regulatory   and   has

been engrafted to protect individual's Privacy Right.

The Aadhaar (Sharing of Information) Regulations, 2016

again contains in Chapter II ­ Restrictions on sharing

of identity information.
Regulation 3
is restriction

on   Authority.
Regulation   4
is   restriction   on

requesting entity.
Regulation 5
fixes responsibility

of   any   agency   or   entity   other   than   requesting   entity

with respect to Aadhaar number.
Regulation 6
provides

restriction   on   sharing,   circulating   or   publishing   of
Aadhaar number.

236.  We, thus, conclude that the provision of
Section
and the Sharing Regulations contains a restriction

and cannot be in any manner be held to violate any of

the   constitutional   rights   of   a   person.     Objective   of

the   Act   is   to   put   restrictions   on   the   sharing

information,   which   also   is   a   legitimate   State   aim.

The   provision   under
Section   29
which   permits   sharing

of   identity   information   except   core   biometric

information in accordance with the Act and Regulations

cannot   be   said   to   be   disproportionate   nor

unreasonable.   Legislature   can   very   well   enumerates

circumstances   and   conditions   where   sharing   of

information   becomes   necessary.     One   of   the

circumstances   where   sharing   of   the   information   is

specifically   engrafted   in   sub­section(2)   of
Section
,   which   provides   that   nothing   contained   in   sub­

section   (3)   of
Section   29
shall   apply   in   respect   of

any   disclosure   of   information,   including   identity

information   or   authentication   records,  made   in   the

interest   of   national   security  in   pursuance   of a
direction   of   an   officer   not   below   the   rank   of   Joint

Secretary   to   the   Government   of   India.     Thus,   the

circumstances   which   can   contemplate   for   sharing

information   is   reasonable   and   proportionate.     We,

thus,   held   that   provisions   of
Section   29
is

constitutional   and   does   not   deserves   to   be   struck

down.     Issue   No.   8   is   answered   in   the   following

manner:­

Ans.8:­ Provisions   of
Section   29
is   constitutional

and does not deserves to be struck down.

Issue No.9 Whether
Section 33
is Constitutional ?

237.
Section   33
of   the   Aadhaar   Act,   2016   is   as
follows:

“33.   Disclosure   of   information   in   certain
cases.­(1)   Nothing   contained   in   sub­section
(2) or sub­section (5) of
section 28
or sub­
section   (2)   of
section   29
shall   apply   in
respect   of   any   disclosure   of   information,
including   identity   information   or
authentication   records,   made   pursuant   to   an
order   of   a   court   not   inferior   to   that   of   a
District Judge:

Provided that no order by the court under
this sub­section shall be made without giving
an opportunity of hearing to the Authority.
(2)   Nothing   contained   in   sub­section   (2)   or
sub­section (5) of
section 28
and clause (b)
of   sub­section   (1),   sub­section   (2)   or   sub­
section   (3)   of
section   29
shall   apply   in
respect   of   any   disclosure   of   information,
including   identity   information   records,   made
in   the   interest   of   national   security   in
pursuance   of   a   direction   of   an   officer   not
below   the   rank   of   Joint   Secretary   to   the
Government   of   India   specially   authorised   in
this   behalf   by   an   order   of   the   Central
Government:

Provided   that   every   direction   issued
under this sub­section, shall be reviewed by
an   Oversight   Committee   consisting   of   the
Cabinet Secretary and the Secretaries to the
Government   of   India   in   the   Department   of
Legal   Affairs   and   the   Department   of
Electronics   and   Information   Technology,
before it takes effect:

Provided   further   that   any   direction
issued under this sub­section shall be valid
for a period of three months from the date of
its   issue,   which   may   be   extended   for   a
further   period   of   three   months   after   the
review by the Oversight Committee.”

238.   The first limb of argument of the petitioner is

that
Section 33
is unconstitutional since it provides

for   the   use   of   the   Aadhaar   data   base   for   Police

verification   which   violates   the   protection   against

self­incrimination as enshrined under
Article 20(3)
of

the Constitution of India.
239.   Sub­section (1) of
Section 33
contains an ample

restriction   in   respect   of   any   disclosure   information

which can be done only in pursuance of an order of the

court   not inferior   to   that   of   a   District   Judge.   The

restriction in disclosure of information is reasonable

and has valid justification. The authority whose duty

is to safeguard the entire data has to be heard before

passing an order by the court which amply protects the

interest of a person whose data is to be disclosed. An

order of the court not inferior to that of a District

Judge for disclosure of information itself is an ample

protection   to that,   for   no   unreasonable   purpose   data

shall   be   disclosed.   Attacking   on   sub­section   (2)   of

Section   33
,   it   is   contended   that   although

(i)disclosure of information has been permitted in the

interest   of   the   national   security   but   there   is   no

definition   of   national   security,   (ii)   there   is   no

independent   oversight   disclosure   of   such   data   on   the

ground of security, (iii)the provision is neither fair

nor   reasonable.   Section   (2)   of
Section   33
is

disproportionate and unconstitutional.
240.
Section   33
sub­section   (2)   contains   two

safeguards.   Firstly,   disclosure   of   information   is   to

be   made   in   the   interest   of   national   security   and

secondly,   in   pursuance   of   a   direction   of   an   officer

not   below   the   rank   of   Joint   Secretary   to   the

Government, who is specially authorised in this behalf

by   an   order   of   the   Central   Government.   National

security,   thus,   has   to   be   determined   by   a   higher

officer who is specifically authorised in this behalf.

This   Court   in
Ex.   Armymen's   Protection   Services   P.

Ltd. Vs.  Union of India (UOI) and Ors.
, 2014 (5) SCC

409, has held that what is in the interest of national

security   is   not   a   question   of   law   but   that   it   is

matter   of   a   policy.   Following   was   held   in   paragraphs

16 and 17:

“16.   What   is   in   the   interest   of   national
security   is   not   a   question   of   law.   It   is   a
matter of policy. It is not for the court to
decide   whether   something   is   in   the   interest
of   State   or   not.   It   should   be   left   to   the
Executive. To quote Lord Hoffman in Secretary
of   State   for   the   Home   Department   v.   Rehman
(2003) 1 AC 153:...in the matter of national
security   is   not   a   question   of   law.   It   is   a
matter   of judgment   and   policy.   Under   the
Constitution   of   the   United   Kingdom   and   most
other   countries,   decisions   as   to   whether
something   is   or   is   not   in   the   interest   of
national   security   are   not   a   matter   for
judicial decision. They are entrusted to the
executive.

17.   Thus,   in   a   situation   of   national
security,   a   party   cannot   insist   for   the
strict   observance   of   the   principles   of
natural justice. In such cases it is the duty
of   the   Court   to   read   into   and   provide   for
statutory   exclusion,   if   not   expressly
provided   in   the   rules   governing   the   field.

Depending   on   the   facts   of   the   particular
case, it will however be open to the court to
satisfy itself whether there were justifiable
facts,   and   in   that   regard,   the   court   is
entitled   to   call   for   the   files   and   see
whether   it   is   a   case   where   the   interest   of
national security is involved. Once the State
is   of   the   stand   that   the   issue   involves
national   security,   the   court   shall   not
disclose the reasons to the affected party.”

241.   The   International   Courts   have   also   dealt   the

issue.   In   a   case,   namely,
Census   Act
(BverfGE   65,   1),

judgment   of   Federal   Constitution   Court   of   Germany,

judgment   dated   11.10.2013,   the   Court   had   occasion   to

consider   the   case   in   the   context   of   data   processing

and protection of individual information against self­

incrimination  and use of their personal data. Dealing

with   right   of   information   and   self­determination   the

Court held that individuals have no right in the sense

of   absolute,   unrestricted   control   over   their   data.
Following was held by the Court:

“The guarantee of this right to informational
self­determination”   is   not   entirely
unrestricted.   Individuals   have   no   right   in
the   sense   of   absolute,   unrestricted   control
over   their   data;   they   are   after   all   human
persons   who   develop   within   the   social
Community   and   are   dependent   upon
communication.   Information,   even   if   related
to   individual   persons,   represents   a
reflection of societal reality that cannot be
exclusively   assigned   solely   to   the   parties
affected.   The   Basic   Law,   as   has   been
emphasized   several   times   in   the   case   law   of
the Federal Constitutional Court, embodies in
negotiating   the   tension   between   the
individual   and   the   Community   a   decision   in
favour   of   civic   participation   and   civic
responsibility(see BverfGE 4, 7 [15] ; 8, 274
[329]; 27, 344 [351 and 352]; 33, 303 [334];
50, 290 [353]; 56, 37 [49]).

Individuals   must   therefore   in   principle
accept   restriction   on   their   right   to
informational   self­determination   in   the
overriding general public interest.”

242. Another judgment of European Commission of Human

Rights   in  M.S.   against   Sweden  was   a   case   that

applicant   has   complained   that   copies   of   her   medical

records containing information on treatment have been

forwarded by the clinic without her information to the

Insurance Co. The case of the applicant was noticed in

paragraph 39 which is to the following effect:
“39. The   applicant   submits   that   the   women’s
clinic’s submission of copies of her medical
records   to   the   Social   Insurance   Office
without   her   knowledge   or   consent   interfered
with   her   right   to   respect   for   her   private
life.   She   maintains   that   the   information
contained   in   these   records   were   of   a   highly
sensitive   and   private   nature.   Allegedly,   she
could   not   anticipate,   when   she   claimed
compensation   from   the   Office,   that
information on the abortion performed several
years   after   alleged   back   injury   would   be
forwarded   to   the   Office.   She   further   refers
to the fact that the information in question
is   not   protected   by   the   same   level   of
confidentiality   at   the   Office   as   at   the
clinic.”

243.   The Commission held that information was rightly

submitted to the Insurance Co. in accordance with law.

It   is   also   relevant   to   refer   the   judgment   of   this

Court   in  People’s   Union   for
Civil   Liberties(PUCL)   v.

Union   of   India
,   1997   (1)   SCC   301,  where   the   writ

petition   was   filed   under
Article   32
alleging   serious

invasion of an individual’s privacy on the account of

Telephone­tapping.   The   Court   adverted   to   the
Indian

Telegraph   Act,   1885
and   the   Rules   framed   thereunder.

The   Court   has   noticed   that
Section   5(2)
of   the

Telegraph Act permits the interception of messages in

accordance with the said section, “Occurrence of any
public   emergency”   or   “in   the   interest   of   public

safety”. In paragraph 28 following was held:

“28.
Section   5(2)
of   the   Act   permits   the
interception   of   messages   in   accordance   with
the   provisions   of   the   said   Section.

"Occurrence   of   any   public   emergency"   or   "in
the   interest   of   public   safety"   are   the   sine
qua   non.   for   the   application   of   the
provisions of
Section 5(2)
of the Apt. Unless
a   public   emergency   has   occurred   or   the
interest   of   public   safety   demands,   the
authorities  have   no  jurisdiction   to  exercise
the   powers   under   the   said   Section.   Public
emergency   would   mean   the   prevailing   of   a
sudden   condition   or   state   of   affairs
affecting   the   people   at   large   calling   for
immediate action.”

244.   This   Court   issued   various   directions   providing

for   certain   safeguards   regarding   an   order   for

Telephone­ tapping. Thus, on fulfillment of statutory

conditions   when   telephonic   conversation   can   be

intercepted   no   exception   can   be   taken   for   disclosure

of information in the interest of national security.

245.   The   power   given   under
Section   33
to   disclose

information cannot be said to be disproportionate. The

disclosure   of   information   in   the   circumstances
mentioned   in
Section   33
is   reasonable   and   in   the

public interest.

246.   We   are   satisfied   that   the   provision   fulfills

three fold test as
laid down in

Puttaswamy
case. There

are   no   grounds   to   declare
Section   33
as

unconstitutional.

247.   We also need to advert to one of the submissions

of   the   petitioner   that   permitting   disclosure   of

information   for   police   investigation   violates   the

protection   against   self­incrimination   as   provided

under
Article 20
sub­clause (3). It is true that under

Section   33
the   Court   may   order   for   disclosure   of

information   even   for   a   police   investigation.   But

information   so   received   in   no   manner   can   be   said   to

violate   the   protection   given   under
Article   20
sub­

clause   (3).   The   basic   information   which   are   with   the

UIDAI   are     demographic   and   biometric   information.
In

this   context,   reference   is   made   to   11­Judge

Constitution Bench judgment of this Court in
State of

Bombay   vs.   Kathi   KALU   Oghad
,   AIR   1961   SC   1808.  The
Constitution Bench had occasion to consider sub­clause

(3)   of
Article   20
of   the   Constitution.   In
the   above

case
from   the   accused   who   was   charged   under
Section
/
IPC   during   the   investigation   prosecution   has

obtained   three   specimen   of   hand­writing   which   were

compared   by   his   hand­writing   which   was   part   of   the

evidence.   A   question   was   raised   as   to   the

admissibility of the specimen of hand­writing, it was

contended   that   use   of   specimen   of   hand­writing

violated protection under
Article 20(3).
This Court in

paragraph 16 laid down following:

(16)   In   view   of   these   considerations,   we
have come to the following conclusions :­
(1) An accused person cannot be said
to   have   been   compelled   to   be   a
witness   against   himself   simply
because he made a statement while in
police   custody,   without   anything
more.   In   other   words,   the   mere   fact
of   being   in   police   custody   at   the
time   when   the   statement   in   question
was made would not, by itself, as a
proposition   of   law,   lend   itself   to
the   inference   that   the   accused   was
compelled   to   make   the   statement,
though that fact, in conjunction with
other   circumstances   disclosed   in
evidence in a particular case, would
be   a   relevant   consideration   in   an
enquiry   whether   or   not   the   accused
person had been compelled to make the
impugned statement.

(2)   The   mere   questioning   of   an
accused   person   by   a   police   officer,
resulting   in   a   voluntary   statement,
which   may   ultimately   turn   out   to   be
incriminatory, is not 'compulsion'.

(3)   'To   be   a   witness'   is   not
equivalent   to   'furnishing   evidence'
in   its   widest   significance;   that   is
to   say,   as   including   not   merely
making of oral or written Dagduas but
also   production   of   documents   or
giving   materials   which   may   be
relevant at a trial to determine the
guilt innocence of the accused.

(4)   Giving   thumb   impressions   or
impressions   of   foot   or   palm   or
fingers   or   specimen   writings   or
showing parts of the body by way of
identification   are   not   included   in
the expression 'to be a witness'.

(5) 'To be a witness' means imparting
knowledge   in   respect   of   relevant
facts   by   an   oral   statement   or   a
statement   in   writing,   made   or   given
in Court or otherwise.

(6) 'To be a witness' in its ordinary
grammatical   sense   means   giving   oral
testimony in Court. Case law has gone
beyond   this   strict   literal
interpretation   of   the   expression
which   may   now   bear   a   wider   meaning,
namely, bearing testimony in Court or
out of Court by a person accused of
an offence, orally or in writing.

(7)   To   bring   the   statement   in
question   within   the   prohibition   of
Article   20(3)
,   the   person   accused
must   have   stood   in   the   character   of
an accused person at the time he made
the statement. It is not enough that
he should become an accused, any time
after the statement has been made.”

248.  From what has been held
in
the above case
, it is

clear   that   ‘to   be   a   witness'   is   not   equivalent   to

'furnishing evidence' in its widest significance. The

use of information retained by the UIDAI given by the

order of the Court under
Section 33
cannot be said to

be violating the protection as contained under
Article

20(3).
Thus,
Article   20(3)
is   not   violated   by

disclosure of information under
Section 33
. In view of

the   foregoing   discussion,   we   hold   that
Section   33
is

constitutional.

249. One   of   the   decisions   on   which   Shri   K.V.

Viswanathan   has   placed   reliance   in   support   of   his

submission   regarding   violation   of
Article   20(3)
as

well   as
Article   21
of   the   Constitution   is
Selvi   and

others vs. State of Karnataka
, 2010(7) SCC 263. In
the

above   case
this   Court   had   considered   as   to   whether

certain   scientific   techniques,   namely,   narcoanalysis,
polygraph   examination   and   the   Brain   Electrical

Activation   Profile   (BEAP)test   for   the   purpose   of

improving   investigation   efforts   in   criminal   cases

violate   sub­clause   (3)   of
Article   20
as   well   as

Article 21.
The legal issues and questions of law have

been noted in paragraphs 2 and 11     to the following

effect:

“2. The legal questions in this batch of
criminal   appeals   relate   to   the   involuntary
administration   of   certain   scientific
techniques,   namely   narcoanalysis,   polygraph
examination   and   the   Brain   Electrical
Activation   Profile   (BEAP)   test   for   the
purpose of improving investigation efforts in
criminal   cases.   This   issue   has   received
considerable   attention   since   it   involves
tensions   between   the   desirability   of
efficient   investigation   and   the   preservation
of   individual   liberties.   Ordinarily   the
judicial task is that of evaluating the rival
contentions   in   order   to   arrive   at   a   sound
conclusion. However, the present case is not
an   ordinary  dispute  between  private  parties.
It   raises   pertinent   questions   about   the
meaning and scope of fundamental rights which
are available to all citizens. Therefore, we
must   examine   the   implications   of   permitting
the   use   of   the   impugned   techniques   in   a
variety of settings.

11. At this stage, it will be useful to
frame   the   questions   of   law   and   outline   the
relevant   sub­questions   in   the   following
manner:
I.Whether   the   involuntary
administration   of   the   impugned
techniques   violates   the   `right
against   self­incrimination'
enumerated   in
Article   20(3)
of   the
Constitution?

I­A.   Whether   the   investigative
use   of   the   impugned   techniques
creates   a   likelihood   of
incrimination for the subject?

I­B.   Whether   the   results
derived from the impugned techniques
amount   to   `testimonial   compulsion'
thereby   attracting   the   bar   of

Article 20(3)?

II.Whether   the   involuntary
administration   of   the   impugned
techniques   is   a   reasonable
restriction on `personal liberty' as
understood in the context of
Article
of the Constitution? ”

250. After   considering   large   number   of   cases   of   this

Court as well as judgments rendered by Foreign Courts,

a conclusion was recorded that those tests, since they

are   a   means   for   imparting   personal   knowledge   about

relevant   facts,   hence,   they   come   within   the   scope   of

testimonial   compulsion   thereby   attracting   the

protective   shield   of
Article   20(3).
In   paragraph   189

following was held:

“189.   In   light   of   the   preceding
discussion,   we   are   of   the   view   that   the
results obtained from tests such as polygraph
examination and the BEAP test should also be
treated   as   `personal   testimony',   since   they
are a means for `imparting personal knowledge
about relevant facts'. Hence, our conclusion
is   that   the   results   obtained   through   the
involuntary   administration   of   either   of   the
impugned   tests   (i.e.   the   narcoanalysis
technique, polygraph examination and the BEAP
test)   come   within   the   scope   of   `testimonial
compulsion',   thereby   attracting   the
protective shield of
Article 20(3).
”

251. In so far as question of violation of
Article 21

is   concerned,   this   Court,   in   paragraphs   225   and   226

has held:

“225. So far, the judicial understanding
of privacy in our country has mostly stressed
on   the   protection   of   the   body   and   physical
spaces   from   intrusive   actions   by   the   State.
While   the   scheme   of   criminal   procedure   as
well   as   evidence   law   mandates   interference
with   physical   privacy   through   statutory
provisions   that   enable   arrest,   detention,
search   and   seizure   among   others,   the   same
cannot   be   the   basis   for   compelling   a   person
`to   impart   personal   knowledge   about   a
relevant   fact'.   The   theory   of
interrelationship of rights mandates that the
right   against   self­incrimination   should   also
be read as a component of `personal liberty'
under
Article 21.
Hence, our understanding of
the `right to privacy' should account for its
intersection with
Article 20(3).
Furthermore,
the `rule against involuntary confessions' as
embodied in
Sections 24
,
,
and
of the
Evidence   Act,   1872   seeks   to   serve   both   the
objectives   of   reliability   as   well   as
voluntariness   of   testimony   given   in   a
custodial   setting.   A   conjunctive   reading   of

Articles   20(3)
and
of   the   Constitution
along   with   the   principles   of   evidence   law
leads us to a clear answer. We must recognise
the   importance   of   personal   autonomy   in
aspects such as the choice between remaining
silent and speaking. An individual's decision
to   make   a   statement   is   the   product   of   a
private   choice   and   there   should   be   no   scope
for   any   other   individual   to   interfere   with
such   autonomy,   especially   in   circumstances
where   the   person   faces   exposure   to   criminal
charges or penalties.

226.   Therefore,   it   is   our   considered
opinion   that   subjecting   a   person   to   the
impugned   techniques  in   an   involuntary   manner
violates   the   prescribed   boundaries   of
privacy.   Forcible   interference   with   a
person's mental processes is not provided for
under any statute and it most certainly comes
into   conflict   with   the   `right   against   self­
incrimination'.     However,   this determination
does   not   account   for   circumstances   where   a
person   could   be   subjected   to   any   of   the
impugned   tests   but   not   exposed   to   criminal
charges and the possibility of conviction. In
such   cases,   he/she   could   still   face   adverse
consequences   such   as   custodial   abuse,
surveillance,   undue   harassment   and   social
stigma among others. In order to address such
circumstances,   it   is   important to   examine
some other dimensions of
Article 21.
”

252. The nature of tests which were under consideration

in   the   aforesaid   case,   were   elaborately   noticed   by

this Court and the tests were found to be in nature of
substantial   intrusion   in   the   body   and   mind   of   an

individual,   hence,   it   was   held   that   they   violate

Article 20(3)
as well as
Article  21.
It is, however,

relevant to notice that this Court in    Selvi  judgment

itself has noticed the distinction in so far as use of

fingerprints   were   concerned.   This   Court   had   noticed

earlier   judgment   of
State   of   Bombay   v.   Kathi   Kalu

Oghad
,   AIR   1961   SC   1808  with   approval.  The   biometric

information that is fingerprints and iris scan can not

be   equated   to   the   tests   which   came   for   consideration

in  Selvi's case.  Hence, the judgment of this Court in

Selvi  does not in any manner support the case of the

petitioners.   Answer   to   question   No.3   is   in   following

Manner:

Ans.9:
Section   33
cannot   be   said   to   be

unconstitutional as it provides for the

use   of   Aadhaar   data   base   for   police

investigation   nor   it   can   be     said   to

violate protection granted under
Article

20(3).
Issue No.10 Whether Section 47 of the Aadhaar Act is
Unconstitutional?

253.   The   Petitioner   submits   that   Section   47   of   the

Aadhaar   Act   is   unconstitutional   since   it   does   not

allow   an   individual   who   is   victim   of   violation   of

Aadhaar   Act   to   initiate   a   criminal   process.   It   is

submitted that the person who is victim of an offence

under   the   Aadhaar   Act   has   no   remedy   to   file   a

complaint   and   Section   47   of   the   Act   restrict   the

filing of complaint only by Authorities or Officers or

persons authorised by it.

254. The above submission is refuted by the respondent

that
Section   47
has   a   rationale.   The   offences   and

penalties under Chapter VII of the Aadhaar Act are all

intended to maintain the purity and integrity of CIDR

and   the   entire   enrolment   storage   in   CIDR   and

authentication   exercise   can   only   be   efficiently   and

effectively   handled   by   UIDAI.   Thus,   jurisdiction   to

submit   a   complaint   has   been   conferred   to   UIDAI   which

is   the   most   entrusted   entity   for   maintaining   the
purity   of   Aadhaar   Scheme   and   is   also   affected   by

offences   committed   under   the   Aadhaar   Act.
Section   47

provides as follows:

“47.   Cognizance   of   Offence   ­  (1)   No   court
shall   take   cognizance   of   any   offence
punishable   under   this   Act,   save   on   a
complaint   made   by   the   Authority   or   any
officer or person authorised by it.

(2)   No   court   inferior   to   that   of   a   Chief
Metropolitan   Magistrate   or   a   Chief   Judicial
Magistrate   shall   try   any   offence   punishable
under this Act.”

255.   Provisions akin to
Section 47
are found in most

of Statutes which Statutes defines offences under the

Statute and provide penalty and punishment thereunder.

Following   are   some   of   the   Statues   which   contains   a

provision akin to Section 47 of Aadhaar Act:

“1)
Section   22
of   Mines   and
Minerals(Development   &   Regulation)   Act,   1957
–  No   Court   shall   take   cognizance   of   any
offence   punishable   under   this   Act   or   any
rules   made   thereunder   except   upon  complaint
in   writing   made   by   a   person   authorised   in
this behalf by the Central Government  or the
State Government.

2)
Section   34
of   the   Bureau   of   Indian
Standards   Act,   1986   ­    No   Court   shall   take
cognizance   of   an   offence   punishable   under
this   Act,  save   on   a   complaint   made   by   or
under   the authority   of   the   Government   or
Bureau   or   by   any   officer  empowered   in   this
behalf   by   the   Government   or   the   Bureau,   or
any consumer or any association recognized in
this   behalf   by   the   Central   or   State
Government.

3)
Section 26(1)
of SEBI Act, 1992 – No Court
shall   take   cognizance   of   any   offence
punishable   under   this   Act   or   any   rules   or
regulations   made   thereunder,   save   on   a
complaint made by the Board.

4)
Section 34
of Telecom Regulatory Authority
of   India   Act,   1997   –  No   Court   shall   take
cognizance   of   any   offence   punishable   under
this   Act   or   the   rules   or regulations   made
thereunder,   save   on   a   complaint   made   by   the
Authority.

5)
Section 57(1)
of Petroleum and Natural gas
Regulatory   Board   Act,   2007   –  No   Court   shall
take   cognizance   of   any   offence   punishable
under Chapter IX save on a complaint made by
the   Board or   by   any   investigating   agency
directed by the Central Government.

6)
Section 47
of Banking Regulation Act, 1949
–  No   court   shall   take   a   cognizance   of   any
offence   punishable   under   sub­section   (5)   of
Section   36AA   or
Section   46
except   upon
complaint   in   writing   made   by   an   officer   of
the Reserve Bank or, as the case may be, the
National   Bank   generally   or   specially
authorised   in   writing   in   this   behalf   by   the
Reserve   Bank,   or   as   the   case   may   be,   the
National Bank and no court other than that of
a   Metropolitan   Magistrate   or   a   Judicial
Magistrate   of   the   first   class   or   any   court
superior thereto shall try any such offence.

7)
Section   19
of   Environment   (Protection)
Act, 1986 – No court shall take cognizance of
any   offence   under   this   Act   except   on   a
complaint   made   by   –   (a)   the   Central
Government   or   any   authority   or   officer
authorised in this behalf by that Government,
or (b) any person who has given notice of not
less   than   sixty   days,   in   the   manner
prescribed, of the alleged offence and of his
intention to make a complaint, to the Central
Government   or   the   authority   or   officer
authorised as aforesaid.

8)
Section   43
of   The   Air   (Prevention   and
Control   of   Pollution)   Act,   1981   –  (1)   No
Court   shall   take   cognizance   of   any   offence
under this Act except on a complaint made by
–   (a)   a   Board   or   any   officer   authorised   in
this behalf by it; or (b) any person who has
given notice of not less than sixty days, in
the manner prescribed, of the alleged offence
and  of  his   intention   to  make   a  complaint   to
the Board or officer authorised as aforesaid,
and   no   court   inferior   to   that   of   a
Metropolitan   Magistrate   or   a   Judicial
Magistrate   of   the   first   class   shall   try   any
offence punishable under this Act.”

256.   Large   number   of   Special   Acts   which   defines

offences   under   the   Act   and   their   penalty   contains

provision   akin   to   Section   34   of   the   Aadhaar   Act.

Special   Acts   are   enacted   for   serving   special   objects

towards   offences   under   the   Act.   The   initiation   and

prosecution of offences under the
Special Act
are kept

by the specified authority to keep the initiation and

prosecution in the hands of the authorities under the
Special   Act
which   acts   as   deterrent   and   prosecutions

are brought to its logical end. Further, objective of

such   provisions   is   to   discourage   frivolous   and

vexatious complaints.

257.  This Court in
Rajkumar Gupta versus Lt.Governor,

Delhi   and   Others
,   (1997)   1   SCC   556,  had   occasion   to

consider
Section 34(1)
of the Industrial Disputes Act,

1947   and   objective   behind   putting   such   restriction.

Section 34
of Industrial Disputes Act provided that no

Court shall take cognizance of any offence punishable

under this Act or of the abetment of any such offence,

save   on   complaint   made   by   or   under   the   authority   of

the   appropriate Government.
Section 34
of Industrial

Disputes   Act   is  pari   materia  with   Section   47   of   the

Aadhaar   Act.   This   Court   noticing   the   objective   of

Section   34
laid   down   following   in   the   paragraph   16.

The   Court   held   that
Section   34
is   in   the   nature   of

limitation   on   the   entitlement   of   workman   or   trade

union or an employer to complain of offences under the

Act.  Following was
laid down in
paragraph 16:

“  16.   At   the   same   time,   the   provisions   of
Section 34
are in the nature of a limitation
on   the   entitlement   of   a   workman   or   a   trade
union or an employer to complain of offences
under  the  said   Act.  They  should  not,  in  the
public   interest,   be   permitted   to   make
frivolous,   vexatious   or   otherwise   patently
untenable complaints, and to this end
Section
requires that no complaint shall be taken
cognizance   of   unless   it   is   made   with   the
authorization of the appropriate Government.”

258.   In   so   far   as   the   submission   that   there   is   no

forum for a person victim of an offence under Aadhaar

Act, suffice to say that
Section 47
can be invoked by

the authority on its own motion or when it receives a

complaint from a victim. The authority i.e. UIDAI has

varied   powers   and   functions   as   enumerated   in
Section
of   the   Act.   It   is   the   authority   who   is   most

entrusted   in   ensuring   that   the   provisions   of   the   Act

are   implemented   in   accordance   with   the   Act   and

offenders should be punished. In so far as remedy of

victim is concerned, there are few facts which need to

be kept in mind.

259.
The   Information   Technology   Act,   2000
defines

electronic   record   in
Section   2(t)
which   is   to   the

following effect:­
“
Section   2(t)
­  “electronic   record”   means
data,   record   or   data   generated,   image   or
sound   stored,   received   or   sent   in   an
electronic   form   or   micro   film   or   computer
generated micro fiche;”

260.   The demographic and biometric information which

is   collected   for   enrolment   of   the   resident   in

electronic   data   as   defined   in
Section   2(t)
of

Information   Technology   Act   and   expressly   stated   in

Section   30   of   Aadhaar   Act.   Chapter   11   of   the

Information   Technology   Act
defines   offences.   Section

66C,   Section   66D   and
Section   72
of   the   Information

Technology   Act   defines   offences   and   provides   for

penalty, which is to the following effect:­

“66C. Punishment for identity theft­ Whoever,
fraudulently   or   dishonestly   make   use   of   the
electronic   signature,   password   or   any   other
unique   identification   feature   of   any   other
person,   shall   be   punished   with   imprisonment
of   either   description   for   a   term   which   may
extend   to   three   years   and   shall   also   be
liable to fine which may extend to rupees one
lakh.

66D.   Punishment   for   cheating   by   personation
by using computer resource­ Whoever, by means
for   any   communication   device   or   computer
resource   cheats   by   personating,   shall   be
punished   with   imprisonment   of   either
description   for   a   term   which   may   extend   to
three years and shall also be liable to fine
which may extend to one lakh rupees.

72. Penalty for breach of confidentiality and
privacy –  Save as otherwise provided in this
Act   or   any   other   law   for   the   time   being   in
force, if any person who, in pursuance of any
of the powers conferred under this Act, rules
or   regulations   made   thereunder,   has   secured
access   to   any   electronic   record,   book,
register,   correspondence,   information,
document   or   other   material   without   the
consent   of   the   person   concerned   discloses
such   electronic   record,   book,   register,
correspondence,   information,   document   or
other   material   to   any   other   person   shall   be
punished   with   imprisonment   for   a   term   which
may  extend  to  two  years, or  with  fine  which
may extend to one lakh rupees, or with both.”

261.  With regard to an offence which falls within the

definition   of   'offences'   a   victim   can   always   file

complaint   or   lodge   an   F.I.R..   Section   46   of   the

Aadhaar Act clearly provides that the penalties under

the   Aadhaar   Act   shall   not   interfere   with   other

punishments.
Section 46
is as follows:

“46.   Penalties   not   to   interfere   with   other
punishments. ­  No penalty imposed under this
Act shall prevent the imposition of any other
penalty or punishment under any other law for
the time being in force.”

262.    This   Court   in
State   (NCT   of   Delhi)   versus

Sanjay
, (2014) 9 SCC 772, had occasion to consider the
provisions   of
Section   22
of   the   Mines   and   Minerals

(Development & Regulations) Act, 1957 which provision

is   similar   to   Section   47   of   the   Aadhaar   Act.  The

question arose that whether in case the complaint has

not   been   filed   by   the   authority   under
Section   22
,

whether cognizance can be taken of the offence if it

falls   within   definition   of   any   of   the   offences   under

the
Indian   Penal   Code
.  There   was   divergence   of

opinions between the different High Courts. This Court

after   noticing   earlier   judgments   of   this   Court,   laid

down following in paragraphs 17 and 73.

“17.  Since conflicting views have been taken
by   the   Gujarat   High   Court,   the   Delhi   High
Court,   the   Kerala   High   Court,   the   Calcutta
High   Court,   the   Madras   High   Court   and   the
Jharkhand   High   Court,   and   they   are   in
different   tones,   it   is   necessary   to   settle
the question involved in these appeals.

73. After giving our thoughtful consideration
in   the   matter,   in   the   light   of   relevant
provisions   of   the   Act   vis­à­vis   the
Code   of
Criminal Procedure
and the Penal Code, we are
of the definite opinion that the ingredients
constituting   the   offence   under   the
MMDR   Act

and   the   ingredients   of   dishonestly   removing
sand   and   gravel   from   the   riverbeds   without
consent, which is the property of the State,
is   a   distinct   offence   under
IPC
.   Hence,   for
the   commission   of   offence   Under
Section   378

IPC,   on   receipt   of   the   police   report,   the
Magistrate   having   jurisdiction   can   take
cognizance   of   the   said   offence   without
awaiting the receipt of complaint that may be
filed   by   the   authorized   officer   for   taking
cognizance in respect of violation of various
provisions of the
MMDR Act
. Consequently the
contrary   view   taken   by   the   different   High
Courts   cannot   be   sustained   in   law   and,
therefore,   overruled.   Consequently,   these
criminal   appeals   are   disposed   of   with   a
direction   to   the   Magistrates   concerned   to
proceed accordingly. ”

263.   The   limitation   as   contained   in
Section   47
in

permitting taking cognizance of any offence punishable

under   Aadhaar   Act   only   on   a   complaint   made   by   the

authority   or   any   officer   or   person   authorised   by   it,

has   legislative   purpose   and   objective,   as   noticed

above. We thus do not find any unconstitutionality in

Section   47   of   the   Aadhaar   Act.   In   view   of   the

foregoing discussions, the answer to Issue No.10 is in

following manner:­

Ans.10: Section 47 of the Aadhaar Act cannot be held
to be  unconstitutional   on   the   ground   that
it does not  allow   an   individual   who   finds
that there is a  violation of Aadhaar Act to
initiate any criminal  process.
Issue No. 11 Whether Section 57 of Aadhaar Act is
unconstitutional?

264.
Section 57
of the Act, which contains a heading

“Act   not   to   prevent   use   of   Aadhaar   Number   for   other

purposes under law” provides:­

“57. Act to prevent use of Aadhaar number for
other purposes under law. ­ Nothing contained
in this Act shall prevent the use of Aadhaar
number   for   establishing   the   identity   of   an
individual   for   any   purpose,   whether   by   the
State   or   any   body   corporate   or   person,
pursuant   to   any   law,   for   the   time   being   in
force, or any contract to this effect:

Provided   that   the   use   of   Aadhaar   number
under   this   section   shall   be   subject   to   the
procedure and obligations under
section 8
and
Chapter VI.”

265. Attacking the provision of
Section 57
, petitioners

contends that broad and unlimited scope of activities

covered under
Section 57
and kinds of private entities

permitted to use Aadhaar is entirely disproportionate

beyond the means and objectives of the Act and without

any   compelling   State   interests.     There   are   no

procedural safeguards governing the actions of private

entities   and   no   remedy   for   undertaking's   failure   or

service denial. The individual, who wish to be
enrolled   have   given   their   consent   only   for   Aadhaar

subsidies,   benefits   and   services,   which   cannot   be

assumed   for   other   purposes.
Section   57
has   to   be

struck   down   on   the   ground   of   excessive   delegation.

“Any   purpose”   indicates   absence   of   guidelines.     Any

purpose does not mean all purposes and several aspects

of human existence.
Section 57
violates all principles

of proportionality.

266.  Refuting the above submission of the petitioners,

the   respondents   submits   that,
Section   57
is   not   an

enabling   provision,   it   merely   provides   as   it   states

that the  provisions of the  Act would not  prevent the

use of Aadhaar  for other purposes.   In fact,
Section
employs limitation on such user for other purposes,

which is engrafted in Proviso to
Section 59
.   The use

of   Aadhaar   having   been   made   subject   to   procedure   and

obligations   under
Section   8
and   Chapter   VI,   the

contract must provide for authentication under
Section
and protection and formulation under Chapter VI also

obviously   entail   the   operation   of   Chapter   VII

(Offences   and   Penalties).
Section   57
does   not   have
any   relation   to   other   laws,   which   may   be   made   by

Parliament,   the   other   laws   made   by   Parliament   would

have to be tested on their own merits.
Section 57
is

not   a   provision   enabling   the   making   of   a   law   or

rather   it   is   actually   a   limitation   or   restriction   to

law, which may be made with respect to use of Aadhaar

number.  The apprehension expressed by the petitioners

is   about   the   wide   extension   of   use   of   Aadhaar   in

private spheres is completely misplaced.

267.   One of the grounds of attack of the petitioners

to
Section 57
is that it is disproportionate and does

not   satisfy   the   proportionality   test   as
laid   down   in

Privacy Judgment –
Puttaswamy
case.   Before proceeding

further,   it   becomes   necessary   to   look   into   the

proportionality test, its content and parameters.

268.   Patanjali Shastri, Chief Justice,  as he then was

speaking   for   a   Constitution   Bench   in
State   of   Madras

Vs. V.G.  Row
, AIR 1952  SC 196,  while  elaborating the

expression reasonable restrictions on the exercise of

right as occurring in Clause (5) of
Article 19
of the
Constitution   laid   down   that   reasonable   restriction

should not be disproportionate. Following was observed

in Paragraph 15:­

“15........It is important in this context to
bear in mind that the test of reasonableness,
wherever   prescribed,   should   be applied   to
each   individual   statute   impugned,   and   no
abstract   standard   or   general   pattern,   of
reasonableness can be laid down as applicable
to all cases. The nature of the right alleged
to   have   been   infringed,   the   underlying
purpose   of   the   restrictions   imposed,   the
extent   and  urgency   of  the  evil  sought  to   be
remedied   thereby,   the   disproportion   of   the
imposition,  the  prevailing   conditions   at   the
time,   should   all   enter   into   the   judicial
verdict.   In   evaluating   such   elusive   factors
and   forming   their   own   conception   of   what   is
reasonable,   in   all   the   circumstances   of   a
given case, it is inevitable that the social
philosophy   and   the   scale   of   values   of   the
Judges   participating   in   the   decision   should
play   an   important   part,   and   the   limit   to
their   interference   with   legislative   judgment
in   such  cases  can  only   be  dictated   by  their
sense   of   responsibility   and   self­restraint
and   the   sobering   reflection   that   the
Constitution is meant not only for people of
their  way  of  thinking  but  for  all,   and  that
the   majority   of   the   elected   representatives
of   the   people   have,   in   authorising   the
imposition   of   the   restrictions,   considered
them to be reasonable.”

269.   A Two Judge Bench of this Court in
Om Kumar and

Others   Vs.   Union   of   India
,   (2001)   2   SCC   386
elaborately   considered   the   concept   of   proportionality

in   reference   to   legislative   action.
This   Court   held

that   ever   since   the   principle   of   proportionality   as

noted above applied in India, Jagannadha Rao,   J. had

referred   to   judgments   of   Canadian   Supreme   Court   in  R

v. Oakes (1986) 26 DLR 2001  and has noticed the three

important   components   of   the   proportionality   test.

First, the measures adopted must be carefully designed

to achieve the objective in question. They must not be

arbitrary,   unfair   or   based   on   irrational

considerations.   In   short,   they   must   be   rationally

connected to the objective. Secondly, the means, must

not   only   be   rationally   connected   to   the   objective   in

the   first   sense,   but   should   impair   as   little   as

possible   the   right   to   freedom   in   question.   Thirdly,

there must be 'proportionality' between the effects of

the measures and the objective.

270.   Again,   in
Teri   Oat   Estates   (P)   Ltd.   Vs.   U.T.

Chandigarh and Others
, (2004) 2 SCC 130, Sinha, J. had

elaborately reviewed the principle of proportionality.

In Paragraph 46, following has been held:­
“46. By proportionality, it is meant that the
question whether while regulating exercise of
fundamental  rights,  the  appropriate  or   least
restrictive choice of measures has been made
by the legislature or the administrator so as
to   achieve   the   object   of   the   legislation   or
the   purpose   of   the   administrative   order,   as
the   case   may   be.   Under   the   principle,   the
court   will   see   that   the   legislature   and   the
administrative authority
“maintain   a  proper   balance   between
the   adverse   effects   which   the
legislation   or   the   administrative
order   may   have   on   the   rights,
liberties   or   interests   of   persons
keeping   in   mind   the   purpose   which
they were intended to serve”.

271.   The most elaborate consideration of the Doctrine

of   Proportionality   was   made   in
Modern   Dental   College

and   Research   Centre   and   Others   Vs.   State   of   Madhya

Pradesh and Others
, (2016) 7 SCC 353.  The validity of

legislation   passed   by   State   of   Madhya   Pradesh

Legislature   came   for   consideration.     The   Court

(speaking   through   Dr.   Justice   A.K.   Sikri,   one   of   us)

held   that   exercise   that   is   required   to   be   undertaken

is   the     balancing   of   fundamental   right   and

restrictions   imposed,   which   is   known   as   Doctrine   of

Proportionality.   In Paragraph 60, following has been
stated:­

“60.  ….........  Thus,   while   examining   as   to
whether   the   impugned   provisions   of   the
statute   and   rules   amount   to   reasonable
restrictions   and   are   brought   out   in   the
interest of the general public, the exercise
that   is   required   to   be   undertaken   is   the
balancing   of   fundamental   right   to   carry   on
occupation   on   the   one   hand   and   the
restrictions imposed on the other hand. This
is   what   is   known   as   “doctrine   of
proportionality”.   Jurisprudentially,
“proportionality”   can   be   defined   as   the   set
of   rules   determining   the   necessary   and
sufficient   conditions   for   limitation   of   a
constitutionally protected right by a law to
be constitutionally permissible.
According to
Aharon   Barak   (former   Chief   Justice,   Supreme
Court   of   Israel),   there   are   four   sub­
components   of   proportionality   which   need   to
be   satisfied,   a   limitation   of   a
constitutional right will be constitutionally
permissible if:

(i)   it   is   designated   for   a   proper
purpose;

(ii)   the   measures   undertaken   to
effectuate   such   a   limitation   are
rationally   connected   to   the
fulfilment of that purpose;

(iii)   the   measures   undertaken   are
necessary   in   that   there   are   no
alternative   measures   that   may
similarly   achieve   that   same   purpose
with a lesser degree of limitation;

and finally

(iv)   there   needs   to   be   a   proper
relation   (“proportionality   stricto
sensu”   or   “balancing”)   between   the
importance   of   achieving   the   proper
purpose and the social importance of
preventing   the   limitation   on   the
constitutional right.”

272.  Elaborating the constitutional principles, it was

laid down that the Constitution permit constitutional

rights   to   be   limited   to   protect   public   interests   or

the   rights   of   others.   The   conflict   between   two

fundamental   aspects,   i.e.   rights   on   the   one   hand   and

its limitation on the other hand ­ is to be resolved

by   balancing   the   two   so   that   they   harmoniously   co­

exist   with   each   other.   This   balancing   is   to   be   done

keeping   in   mind   the   relative social   values   of   each

competitive aspects when considered in proper context.

What   criteria   is   to   be   adopted   in   for   a   proper

balancing has been explained in Paragraphs 63 and 64:­

“63.   In   this   direction,   the   next   question
that arises is as to what criteria is to be
adopted for a proper balance between the two
facets   viz.   the   rights   and   limitations
imposed upon it by a statute. Here comes the
concept   of   “proportionality”,   which   is   a
proper   criterion.   To   put   it   pithily,   when   a
law   limits   a   constitutional   right,   such   a
limitation   is   constitutional   if   it   is
proportional.   The   law   imposing   restrictions
will   be   treated   as   proportional   if   it   is
meant to achieve a proper purpose, and if the
measures taken to achieve such a purpose are
rationally connected to the purpose, and such
measures   are   necessary.   This   essence   of
doctrine   of   proportionality   is   beautifully
captured by Dickson, C.J. of Canada in R. v.

Oakees,   (1986)   1   SCR   103   (Can   SC),   in   the
following words (at p. 138):

“To   establish   that   a   limit   is
reasonable and demonstrably justified
in a free and democratic society, two
central   criteria   must   be   satisfied.

First,   the   objective,   which   the
measures, responsible for a limit on
a   Charter   right   or   freedom   are
designed   to   serve,   must   be   “of”
sufficient   importance   to   warrant
overriding a constitutional protected
right or freedom … Second … the party
invoking
Section 1
must show that the
means   chosen   are   reasonable   and
demonstrably justified. This involves
“a   form   of   proportionality   test…”
Although   the   nature   of   the
proportionality   test   will   vary
depending   on   the   circumstances,   in
each case courts will be required to
balance the interests of society with
those   of   individuals   and   groups.

There   are,   in   my   view,   three
important   components   of   a
proportionality   test.   First,   the
measures adopted must be … rationally
connected   to   the   objective.   Second,
the means … should impair “as little
as possible” the right or freedom in
question   …   Third,   there   must   be   a
proportionality   between   the   effects
of the measures which are responsible
for   limiting   the   Charter   right   or
freedom, and the objective which has
been   identified   as   of   “sufficient
importance”.   The   more   severe   the
deleterious effects of a measure, the
more important the objective must be
if   the   measure   is   to   be   reasonable
and demonstrably justified in a free
and democratic society.”

64.   The   exercise   which,   therefore,   is   to   be
taken   is   to   find   out   as   to   whether   the
limitation of constitutional rights is for a
purpose that is reasonable and necessary in a
democratic   society   and   such   an   exercise
involves   the   weighing   up   of   competitive
values, and ultimately an assessment based on
proportionality   i.e.   balancing   of   different
interests.”

273.   The   application   of   Doctrine   of   Proportionality,

while   examining   validity   of   the   Statute   has   been

accepted in other countries as well. Judgments of the

U.S.   Supreme   Court   as   well   as   of   United   Kingdom,

Canadian Supreme Court and Australian Court shows that

they   have   applied   proportionality   principle   while

judging a Statute.  European Court of Human Rights and

other   international   bodies   have   recognised   the   said

principle.     Privacy   judgment   in
Puttaswamy
case  has

also accepted the proportionality doctrine for judging

validity of a Statute.  In the three­fold test evolved

in   Privacy   Judgment,   proportionality   is   the   third
component.   Dr. D.Y. Chandrachud, J. in Paragraph 310

has stated following in respect of proportionality:­

“310.   While   it   intervenes   to   protect
legitimate   State   interests,   the   State   must
nevertheless   put   into   place   a   robust   regime
that   ensures   the   fulfilment   of   a   threefold
requirement.   These   three   requirements   apply
to   all   restraints   on   privacy   (not   just
informational privacy). They emanate from the
procedural   and   content­based   mandate   of

Article 21.
The first requirement that there
must   be   a   law   in   existence   to   justify   an
encroachment   on   privacy   is   an   express
requirement of
Article 21.
For, no person can
be   deprived   of   his   life   or   personal   liberty
except   in   accordance   with   the   procedure
established   by   law.   The   existence   of   law   is
an   essential   requirement.   Second,   the
requirement   of   a   need,   in   terms   of   a
legitimate State aim, ensures that the nature
and   content   of   the   law   which   imposes   the
restriction   falls   within   the   zone   of
reasonableness   mandated  by
Article   14
,   which
is   a   guarantee   against   arbitrary   State
action. The pursuit of a legitimate State aim
ensures   that   the   law   does   not   suffer   from
manifest   arbitrariness.   Legitimacy,   as   a
postulate,   involves   a   value   judgment.

Judicial   review   does   not   reappreciate   or
second   guess   the   value   judgment   of   the
legislature   but   is   for   deciding   whether   the
aim   which   is   sought   to   be   pursued   suffers
from   palpable   or   manifest   arbitrariness.   The
third   requirement   ensures   that   the   means
which   are adopted   by   the   legislature   are
proportional   to   the   object   and   needs   sought
to   be   fulfilled   by   the   law.   Proportionality
is   an   essential   facet   of   the   guarantee
against   arbitrary   State   action because   it
ensures   that   the   nature   and   quality   of   the
encroachment   on   the   right   is   not
disproportionate   to   the   purpose   of   the   law.

Hence, the threefold requirement for a valid
law arises out of the mutual interdependence
between   the   fundamental   guarantees   against
arbitrariness   on   the   one   hand   and   the
protection   of   life   and   personal   liberty,   on
the other. The right to privacy, which is an
intrinsic   part   of   the   right   to   life   and
liberty,   and   the   freedoms   embodied   in   Part
III   is   subject   to   the   same   restraints   which
apply to those freedoms.”

274.   The   third   requirement   ensures   that   the   means

which are adopted by the legislature are proportional

to the object and needs sought to be fulfilled by the

law.   Proportionality   is   an   essential   facet   of   the

guarantee   against   arbitrary   state   action   because   it

ensures   that   the   nature   and   quality   of   the

encroachment   on   the   right   is   not   disproportionate   to

the purpose of the law.

275.   European Court of Justice in  Michael Schwarz Vs.

Stadt   Bochum  in   its   judgment   dated   17.10.2013,   while

considering a directive of the European Parliament and

on   the   protection   of   individuals   with   regard   to   the

processing   of   personal   data   and   on   the   free   movement

of   such   data,   has   applied   the   proportionality
principle.  Following was laid down in Paragraph 40:­

“40.     Fourth,   the   Court   must   establish
whether   the   limitations   placed   on   those
rights are proportionate to the aims pursued
by   Regulation   No.   2252/2004   and,   by
extension,   to   the   objective   of   preventing
illegal   entry   into   the   European   Union.     It
must   therefore   be   ascertained   whether   the
measures   implemented   by   that   regulation   are
appropriate   for   attaining   those   aims   and   do
not   go   beyond   what   is   necessary   to   achieve
them   (see Volker   and   Markus   Schedule   and
Eifert, paragraph 74).”

276.  Court of Justice of the European Union in Digital

Rights   Ireland   Ltd.   Vs.   Minister   for   Communications

[2015] QBECJ 127 had occasion to consider the validity

of Parliament and Council Directive 2006/24/EC on the

retention   of   data   generated   or   processed   by   them   in

connection   with   the   provision   of   publicly   available

electronic   communications   services   or   of   public

communications   networks.     Applying   the   principle   of

proportionality,   it   was   held   that   principle   of

proportionality   requires   that   acts   of   the   EU

institutions   be   appropriate   for   attaining   the

legitimate   objectives   pursued   by   the   legislation   at

issue   and   do   not   exceed   the   limits   of   what   is
appropriate   and   necessary   in   order   to   achieve   those

objectives.  Following was laid down in Paragraph 46:

“46.   In   summary,   Directive   2006/24   is
characterised   by   its   functional   duality.   It
is, on the one hand, an entirely traditional
Directive   which   seeks   to   harmonise   national
laws   that   are   disparate   (recital   (5)   in   the
Preamble   to   Directive   2006/24   states   that
national   laws   ”vary  considerably”)   or   likely
to   become   so,   and   was   adopted   in   the
interests of the functioning of the internal
market   and   precisely   calibrated   for   that
purpose,   as   the   court   ruled   in  Ireland   v
European Parliament. However, it is also, on
the   other   hand,   a   Directive   which,   even   in
its  harmonising  function,   seeks  to   establish
where appropriate, obligations­ in particular
data retention obligations­ which constitute,
as   I   shall   show   later,   serious   interference
with the enjoyment of the fundamental rights
guaranteed   to   European   citizens   by   the
Charter,   in   particular   the   right   to   privacy
and   the   right   to   the   protection   of   personal
data.”

277.   Another   judgment   by   Court   of   the   Justice   of

European Union (Grand Chamber) is Tele2 Sverige AB Vs.

Post­och   telesyrelsen.  A   directive   of   European

Parliament   and   of   the   Council   concerning   the

processing   of   personal   data   and   the   protection   of

privacy   in   the   electronic   communications   sector   came

for consideration.   In Paras 95, 96 and 116 following
was laid down:­

“95.     With   respect   to   that   last   issue,   the
first sentence of
Article 15(1)
of Directive
2002/58 provides that Member States may adopt
a   measure   that   derogates   from   the   principle
of   confidentiality   of   communications   and
related   traffic   data   where   it   is   a
‘necessary,   appropriate   and   proportionate
measure within a democratic society’, in view
of   the   objectives   laid   down   in   that
provision.   As   regards   recital   11   of   that
directive,   it   states   that   a   measure   of   that
kind must be ‘strictly’ proportionate to the
intended   purpose.   In   relation   to,   in
particular,   the   retention   of   data,   the
requirement laid down in the second sentence
of
Article   15(1)
of   that   directive   is   that
data   should   be   retained   ‘for   a   limited
period’   and   be   ‘justified’   by   reference   to
one   of   the   objectives   stated   in   the   first
sentence of
Article 15(1)
of that directive.

96.     Due   regard   to   the   principle   of
proportionality also derives from the Court’s
settled   case­law   to   the   effect   that   the
protection   of   the   fundamental   right   to
respect for private life at EU level requires
that derogations from and limitations on the
protection of personal data should apply only
in so far as is strictly necessary (judgments
of   16   December   2008,   Satakunnan
Markkinapörssi   and   Satamedia,  C­
73/07,EU:C:2008:727,paragraph  56;   of   9
November 2010, Volker und Markus Schecke and
Eifert,  C­92/09   and   C­93/09,  EU:C:2010:662,
paragraph  77;   the  Digital   Rights  judgment,
paragraph 52, and of 6 October 2015, Schrems,
C­362/14, EU:C:2015:650, paragraph 92).

116     As   regards   compatibility   with   the
principle   of   proportionality,   national
legislation   governing   the   conditions   under
which   the   providers   of   electronic
communications   services   must   grant   the
competent national  authorities access to  the
retained data must ensure, in accordance with
what   was   stated   in   paragraphs   95   and   96   of
this   judgment,   that   such   access   does   not
exceed   the   limits   of   what   is   strictly
necessary.”

278.  The U.S. Supreme Court while considering the said

test   has   repeatedly   refused   to   apply   the   least

intrusive   test.    Vernonia   School   District   Vs.   Wayne

Acton, 515 US 646, 132 L.Ed. 2D 564, was a case where

a   Student   Athlete   Drug   Policy   was   adopted   by   the

School   District,   which   authorised   random   urine

analysis drug testing of students participating in the

District   School   Athletic   Programme.     A   student   was

denied participation in Football game since he and his

parents had refused to sign the testing consent forms.

The   Actons   filed   suit,   seeking   for   a   declaratory   and

injunctive relief from enforcement of the Policy.  One

of   the   submissions   raised   was   that   Policy   is

disproportionate   since   it   asks   all   the   athletes   to

undergo   urine   analysis,   the   test   is   not   least

intrusive   test.     Repelling   the   least   intrusive   test,
following was held:­

“As   to   the   efficacy   of   this   means   for
addressing the problem: It seems to us self­
evident that a drug problem largely fueled by
the   "role   model"   effect   of   athletes'   drug
use, and of particular danger to athletes, is
effectively   addressed   by   making   sure   that
athletes do not use drugs. Respondents argue
that a "less intrusive means to the same end"

was   available,   namely,   "drug   testing   on
suspicion of drug use." Brief for Respondents
45­46. We have repeatedly refused to declare
that   only   the   "least   intrusive"   search
practicable   can   be   reasonable   under   the
Fourth   Amendment.   Skinner,   supra,   at   629,
n.9,   103   l   Ed   2d   639,   109   S   Ct.   1402
(collecting cases).

279.   To   the   same   effect   is   another   judgment   of   U.S.

Supreme   Court   in  Board   of   Education   of   Independent

School   District   Vs.   Lindsay   Earls,   536   US   822=153

L.Ed.2d. 735.

280.   The   submission   of   the   respondents   that   least

intrusive   test   cannot   be   applied   to   judge   the

proportionality   of   Aadhaar   Act   has   been   refuted   by

petitioners.   Petitioners submit that least intrusive

test is a test, which was applied in large number of

cases and i.e. the test which may ensure that there is

a minimal invasion  of privacy.   It  is submitted that
the   respondents   could   have   switched   to   a   smart   card,

which   itself   contain   the   biometric   information   of   a

person.     Respondents   submitted   that   least   intrusive

test has not been approved either in the
Modern Dental

(supra) or in the
Puttaswamy
case.  We are also of the

view that there are several reasons due to which least

intrusive   test   cannot   be   insisted.     For   applying   the

least   intrusive   test,   the   Court   has   to   enter

comparative analysis of all methods of identification

available,   which   need   to   be   examined   with   their

details   and   compared.   Court   has   to   arrive   at   finding

as to which mode of identity is a least intrusive.  We

are   of   the   view   that   comparison   of   several   modes   of

identity   and   to   come   to   a   decision,   which   is   least

intrusive is a matter, which may be better left to the

experts   to   examine.     Further,   there   are   no   proper

pleadings   and   material   with   regard   to   other   modes   of

identification,   which   could   have   been   adopted   by   the

State, to come to a definite conclusion by this Court.

281. After noticing the parameters of proportionality,

we   now   need   to   apply   proportionality   and   other   tests
to   find   out   as   to   whether
Section   57
satisfies   the

proportionality and   other   tests.
Section   57
begins

with   the   phrase   “nothing   contained   in   this   Act   shall

prevent   the   use   of   Aadhaar   number.....”   for

establishing   the   identity   of   an   individual   for   any

purpose.
Section   57
reveals   following   concepts   and

ides, which can be para phrased in following manner:­

(a) Nothing   contained   in   this   Act   shall

prevent   the   use   of   Aadhaar   number   for

identifying the identity of an individual

for any purpose.

(b) Whether by the State or body corporate or

private person.

(c) Pursuant   to   any   law,   for   the   time   being

in force or any contract to this effect.

282.   The basic theme of the Aadhaar Act to implement

the Aadhaar programme was for purposes of disbursement

of   subsidies,   benefits   or   services   to   individuals

entitled   for   the   same.     By   various   notifications

issued   under
Section   7
,   the   Government   has   made

applicable Aadhaar authentication for large number of
schemes namely 133 in number.  The idea behind
Section
is that Aadhaar is liberated from the four corners

of   the   Act   and   it   may   not   be   confined   to   use   under

Section 7
alone.
The Act
does not prohibit the use of

Aadhaar for any other purpose.
Section 57
is thus in

a way clarificatory in nature, which enable the use of

Aadhaar for any other purposes.   The petitioners have

two   basic   objections.     Firstly,   they   submitted   that

use of word “any purpose” is unguided and uncontrolled

and   secondly   it   can   be   used   by   body   corporate   or

persons,   pursuant   to   any   law,   for   the   time   being   in

force   or   any   contract   to   this   effect.    Puttaswamy

judgment   has   already   laid   down   that   any   infringement

of   Privacy   right   should   pass   three­fold   test   as

noticed   above.     The   first   test,   which   needs   to   be

satisfied   for   non­intrusion   in   privacy   right   is   that

it   should   be   backed   by   law.
Section   57
cannot   be

treated as a law, which permit use  of Aadhaar number

for any purpose.  The law providing for use of Aadhaar

for   any   purpose   should   be   rational   and   proportional.

There has to be some object to be achieved by use of
Aadhaar,   in   a   particular   case,   the   legislature   has

ample   power   to   provide   for   legislative   scheme   by   an

enactment making use of Aadhaar and use of Aadhaar has

to be backed by a valid law.  In event, it is accepted

on   the   strength   of
Section   57
that   a   State   or   body

corporate or  person, on the basis of any  contract to

this effect, are permitted to use Aadhaar it shall be

wholly   unguided   and   uncontrolled,   which   is   prone   to

violate the right of privacy.
Section 57
makes use of

Aadhaar on two basis.   Firstly, “pursuant to any law,

for   the   time   being   in   force”   and   secondly   “any

contract   to   this   effect”.     When   the   legislature   uses

the phrase “pursuant to any law, for the time being in

force”, obviously the word law used in
Section 57
is a

law other than
Section 57
of Aadhaar Act, 2016 and the

Regulations   framed   thereunder.     When   any   law   permits

user of Aadhaar, its validity is to be tested on the

anvil of  three­fold test  as
laid  down in

Puttaswamy

case, but permitting use of Aadhaar on any contract to

this   effect,   is   clearly   in   violation   of   Right   of

Privacy.  A contract entered between two parties, even
if one party is a State, cannot be said to be a law.

283.   We thus, are of the view that
Section 57
in so

far as it permits use of Aadhaar on “any contract to

this effect” is clearly unconstitutional and deserves

to be struck down.   We may again clarify that
Section
has to be read only to mean that it clarifies that

nothing contained in Aadhaar Act shall prevent the use

of   Aadhaar   for   establishing   the   identity   of   an

individual   for   any   purpose,   in   pursuant   to   any law.

Section 57
itself is not a law, which may permit use

of Aadhaar for any purpose.   There has to be a valid

law   in   existence,   which   should   also   pass   the   three­

fold test as
laid down  in

Puttaswamy
case for making

provision for use of Aadhaar.

284.   In   view   of   the   foregoing   discussions,   we   held

that
Section 57
, to the extent, which permits use of

Aadhaar by the State or any body corporate or person,

in   pursuant   to   any   contract   to   this   effect   is

unconstitutional   and   void.     Thus,   the   last   phrase   in

main provision of
Section 57
, i.e. “or any contract to
this effect” is struck down.  Issue No. 11 is answered

in the following manner:­

Ans.11:­
Section 57
, to the extent, which permits use

of   Aadhaar   by   the   State   or   any   body

corporate   or   person,   in   pursuant   to   any

contract to this effect is unconstitutional

and   void.     Thus,   the   last   phrase   in   main

provision   of
Section   57
,   i.e.   “or   any

contract to this effect” is struck down.

Issue No.12 Whether
Section   59
is   void   or
unconstitutional?

285.   Learned   counsel   for   the   petitioners   have

submitted that prior to enactment of Aadhaar Act there

was no law and all actions undertaken in pursuance of

the executive order dated 28.01.2009 including taking

of   demographic   and   biometric   information   of   an

individual   was   not   backed   by   any   law   violated

fundamental right of privacy. Violation of fundamental

right   of   privacy   cannot   be   cured   by   any   subsequent

legislation.   It   is   well   settled   that   Executive
actions,   which   breach   fundamental   right   of   a   person

must have the authority of law to support it. A post­

constitutional   law   or   executive   act   that   violates

fundamental   rights   is   still   born   and   void   ab   initio.

Further   there   was   no   consent,   let   alone   informed

consent   obtained   from   individuals   at   the   time   of

enrolment under the said notification. A   validating

law   must   remove   the   cause   of   invalidity   of   previous

acts. The cause of invalidity in the present case was

the absence of a law governing privacy infringements.

However,
Section   59
does   not   create   such   a   legal

fiction where the Aadhaar Act is  deemed to have been

in   existence   since   2009.   It   only   declares   a   legal

consequence of acts done by Union since 2009, which it

cannot do.   No procedural safeguards existed pre­2016

and   thus,   even   assuming   that
Section   59
is   validly

enacted,   it   has   to   be   declared   unconstitutional   for

violating
Articles 14
and
21.

286.   Replying   the   above   submissions,   respondents

submit   that
Section   59
is   retrospective,   saving

provision which provides a retrospective effect to the
notification   dated   28.01.2009   and     anything   done   or

action taken by the Central Government under the said

Resolution.

287.  The expression ‘anything done or any action under

the   Resolution’   is   wide   enough   to   cover   all   the

actions including memorandum of undertaken which UIDAI

executed   as   Department   of   Central   Government.

Section 59
seeks to save and  continue under the said

Act   what   was   done   under   the   executive   scheme.   The

submission that breach of fundamental right cannot be

retrospectively cured is incorrect. The last phrase of

Section 59
uses the expression “shall be deemed”, this

expression clearly indicates creation of fiction with

the   object   of   providing   legislative   support   to   the

action   taken   before   the   Act.   That   seeks   to   continue

the   entire   architecture   of   Aadhaar   which   established

under the Government Resolution dated 28.01.2009. As a

result of deeming provision all the actions under the

aforesaid   scheme   shall   be   deemed   to   have   been   done

under   the   Act   and   not   under   the   aforesaid

notification.  We may have a look on
Section 59
of the
Act which provides:

“59. Anything done or any action taken by the
Central   Government   under   the   Resolution   of
the  Government   of   India,   Planning   Commission
bearing   notification   number   A­43011/02/2009­
Admin. I, dated the 28th January, 2009, or by
the Department of Electronics and Information
Technology   under   the   Cabinet   Secretariat
Notification bearing notification number S.O.
2492(E),   dated   the   12th   September,   2015,   as
the case may be, shall be deemed to have been
validly done or taken under this Act.”

288.   Justice   G.P.   Singh   in   Principles   of   Statutory

Interpretation,   14th  Edition,   while   explaining   the

legal   fiction   sum   up   the   Principle   in   the   following

words:

“The Legislature is quite competent to create
a  legal  fiction,  in  other  words,   to  enact  a
deeming provision for the purpose of assuming
existence   of   a   fact   which   does   not   really
exist   provided   the   declaration   of   non­
existent   facts   as   existing   does   not   offend
the  constitution.   Although   the   word  ‘deemed’
is   usually   used,   a   legal   fiction   may   be
enacted   without   using   that   word.   For
instance, the words ‘as if’ can also be used
to create a legal fiction.

In   interpreting   a   provision   creating   a
legal fiction, the court is to ascertain for
what   purpose   the   fiction   is   created,   and
after   ascertaining   this,   the   Court   is   to
assume all those facts and consequences which
are   incidental   or   inevitable   corollaries   to
the  giving  effect  to   the  fiction.  But  in   so
construing   the   fiction   it   is   not   to   be
extended   beyond   the   purpose   for   which   it   is
created,   or   beyond   the   language   of   the
section by which it is created.”

289.   A   Constitution   Bench   judgment   of   this   Court   in

M/s.
West   Ramnad   Electric   Distribution   Co.   Ltd.   vs.

The State of Madras and another
, AIR 1962 SC 1753, has

been   heavily   relied   by   the   respondents.   The   Madras

Legislature had passed an Act, the Madras Electricity

Supply Undertakings (Acquisition) Act, 1949 for supply

of electricity in the province of Madras. By an order

dated   17.05.1951   appellant   undertaking   was   acquired

and   possession   was   directed   to   be   taken.
There   was

challenge   to   1949   Act   which   challenge   was   upheld   by

this Court in  Rajahmundry Electric Supply Corporation

Ltd. v. State of Andhra Pradesh, AIR 1954 SC 251,  on

the   ground   that   Act   was   beyond   the   legislative

competence   of   the   Madras   Legislature.   The   Madras

Legislature passed another Act, the Madras Electricity

Supply   Undertakings   (Acquisition)   Act,   1949,   which

also   received   the   Presidential   assent.
The   Act

purported to validate the action taken under the 1949
Act.   A   writ   petition   was   filed   in   Madras   High   Court

challenging   the   action   taken   under   1949   Act   to

continue   the   possession.   The   writ   petition   was

dismissed and the matter was taken to this Court. The

contention which was raised before this Court has been

noticed in paragraph 8 in the following words:

“8....Mr.   Nambiar   further   contends  that   this
notification was invalid for two reasons; it
was invalid because it has been issued under
the   Provisions   of   an   Act   which   was   void   as
being   beyond   the   legislative   competence   of
the   Madras   Legislature,   and   it   was   void   for
the   additional   reason   that   before   it   was
issued,   the   Constitution   of   India   had   come
into   force   and   it   offended   against   the
provisions   of
Art.   31
of   the   Constitution,
and so,
Art. 13(2)
applied.
Section 24
of the
Act,   no   doubt,   purported   or   attempted   to
validate   this   notification,   but   the   said
attempt   has   failed   because   the   Act   being
prospective,   s.  24   cannot   have   retrospective
operation.   That,   in   substance,   is   the   first
contention raised before us.”

290.
Section   24
of   the   1949   Act   which   created   a

deeming fiction validating the actions taken under the

earlier Act has been noticed in paragraph 11 which is

to the following effect:

“11.   Let   us   then   construe
section   24
and
decide whether it serves to validate the
impugned   notification   issued   by   the
respondent on the 21st September, 1951.

Section 24
reads thus :­
"Orders   made,   decisions   or
directions   given,   notifications
issued,   proceedings   taken   and   acts
of   things   done,   in   relation   to   any
undertaking   taken   ever,   if   they
would have been validly made, given,
issued,   taken   or   done,   had   the
Madras   Electricity   Supply
Undertakings (Acquisition) Act, 1949
(Madras Act XLIII of 1949), and the
rules made thereunder been in force
on   the   date   on   which   the   said
orders,   decisions   or   directions,
notifications,   proceeding,   acts   or
things,   were   made,   given,   issued,
taken or done are hereby declared to
have   been   validly   made,   given,
issued,   taken   or   done,   as   the   case
may   be,   except   to   the   extent   to
which   the   said   orders,   decisions,
directions,   notifications,
proceedings,   acts   or   things   are
repugnant to the provisions of this
Acts."”

291.   Repelling   the   submission   of   counsel   for   the

appellant it was held that
Section 24
had been enacted

for   the   purpose   of   retrospectively   validating   action

taken   under   the   provisions   of   the   earlier   Act.

Following was held in paragraph 13:
“13....
If   the   Act
is   retrospective   in
operation and
s. 24
has been enacted for the
purpose of retrospectively validating actions
taken   under   the   provisions   of   the   earlier
Act, it must follow by the very retrospective
operation of the relevant provisions that at
the   time   when   the   impugned   notification   was
issued,   these   provisions   were   in   existence.
That  is  the  plain  and  obvious  effect  of  the
retrospective   operation   of   the   statute.
Therefore   in   considering   whether
Art.   31(1)

has been complied with or not, we must assume
that before the notification was issued, the
relevant   provisions   of   the   Act   were   in
existence and so,
Art. 31(1)
must be held to
have been complied with in that sense.”

292.   The submission was made that notification issued

under the earlier Act contravenes
Article 31
which is

a   fundamental   right   and   cannot   be   cured   by   the

subsequent   law.   The   contention   has   been   noted   in

paragraph 15:

15. That takes us to the larger issue raised
by   Mr.   Nambiar   in   the   present   appeals.   He
contends that the power of the legislature to
make   laws retrospective   cannot validly   be
exercised so as to care the contravention of
fundamental   rights   retrospectively.   His
contention   is   that   the   earlier   Act   of   1949
being   dead   and   non­existent,   the   impugned
notification   contravened
Art.   31(1)
and  this
contravention   of   a   fundamental   right   cannot
be   cured   by   the   legislature   by   passing   a
subsequent   law   and   making   it   retrospective.

In support of this argument, he has relied on
the  decision   of  this   Court   in  Deep   Chand   v.

The   State   of   Uttar   Pradesh   (1959)   Supp.   2
S.C.R. 8.(AIR 1959 SC 648)....”

293.   It   was   held   by   the   Constitution   Bench   that   the

Legislature   can   effectively   exercise   power   of

validating   action   taken   under   the   law   which   was   void

for the reason that it contravened fundamental right.

In paragraph 16 following has been held:

“16....If   a   law   is   invalid   for   the   reason
that   it   has   been   passed   by   a   legislature
without legislative competence, and action is
taken   under   its   provisions,   the   said   action
can   be   validated   by   a   subsequent   law   passed
by   the   same   legislature   after   it   is   clothed
with   the   necessary   legislative   power.   This
position is not disputed. If the legislature
can   by   retrospective   legislation   cure   the
invalidity   in   actions   taken   in   pursuance   of
laws which were void for want of legislative
competence   and   can   validate   such   action   by
appropriate   provisions,   it   is   difficult   to
see   why   the   same   power   cannot   be   equally
effectively   exercised   by   the   legislature   in
validating actions taken under law which are
void   for   the   reason   that   they   contravened
fundamental   rights.   As   has   been   pointed   out
by   the   majority   decision   in   Deep   Chand's
case,   the   infirmity   proceeding   from   lack   of
legislative   competence   as   well   as   the
infirmity   proceeding   from   the   contravention
of fundamental rights lead to the same result
and that is that the offending legislation is
void   and   honest.   That   being   so,   if   the
legislature can validate actions taken under
one   class   of   void   legislation,   there   is   no
reason why it cannot exercise its legislative
power   to   validate   actions   taken   under   the
other   class   of   void   legislation.   We   are,
therefore,   not   prepared   to   accept   Mr.
Nambiar's   contention   that   where   the
contravention   of   fundamental   rights   is
concerned, the legislature cannot pass a law
retrospectively   validate   actions   taken   under
a   law   which   was   void   because   it   contravened
fundamental rights.”

294.  Shri Shyam Divan submits that the above judgment

of   this   Court   in  M/s.   West   Ramnad   Electric

Distribution   Co.Ltd.  is   not   applicable.   He   submits

that unlike Section 59 of Aadhaar Act, the provisions

in
West   Ramnad
case    had   no   limiting   words   such   as

‘action taken by the Central Government’.

Further even

under the
West Ramnad
case  principle, the action can

be   saved   would   have   to   be   proper   under   the   previous

regime.  West   Ramnad  actions   were  under   an   earlier

statute that was declared ultra vires, which cannot be

saved   under   Section   59   of   the   Aadhaar   Act.   The

collection   of   biometrics   from   individuals   right   upto

2016 cannot be described as lawful and intra vires the

2009   notification.   If   it   were   ultra   vires   the   2009
notification,   Section   59   of   the   Aadhaar   Act   cannot

validate the action.

295.  We have already noticed the ratio of the judgment

as   stated   in   paragraph   16   in   the   judgment   in
West

Ramnad
case  that   even   if   earlier   action   which   is

sought   to   be   validated   was   ultra   vires   and   violates

constitutional   right,   it   could   have   been   very   well

validated by retrospective statute creating a deeming

fiction.

We   are   of   the   view   that
ratio
laid   down   in

West   Ramnad
case  is  fully   applicable   in   the   present

case.

296.   Another   Constitution   Bench   in
Bishambhar   Nath

Kohli and others v. State of Uttar Pradesh and others
,

AIR 1966 SC 573,  had occasion to consider the deeming

fiction   as   contained   under   Act   31   of   1950.
Section

58(3)
of   Act   31   of   1950   as   deeming   provision   that

anything done or action taken in exercise of the power

conferred under Ordinance 27  of 1949  is to be deemed

to   have   been   done   or   taken   in   exercise   of   the   power
conferred by or under Act 31 of 1950. In paragraphs 7

and 8 of the judgment following has been laid down:

“7.   By   Ordinance   27   of   1949   a   proceeding
commenced   under   Ordinance   12   of   1949   or
anything done or action taken in the exercise
of the powers conferred under that Ordinance
was   to   be   deemed   a   proceeding   commenced,
thing done and action taken under the former
Ordinance as if that Ordinance were in force
on   the   date   on   which   the   proceeding   was
commenced,   thing   was   done   or   action   was
taken.
Section   58(3)
of   Act   31   of   1950
contained   a   similar   deeming   provision   that
anything done or action taken in exercise of
the   power   conferred   under   Ordinance   27   of
1949   is   to   be   deemed   to   have   been   done   or
taken   in   exercise   of   the   power   conferred   by
or under Act 31 of 1950, as if the Act were
in force on the day on which such thing was
done or action was taken.

8. By this chain of fictions, things done and
actions taken under Ordinance 12 of 1949 are
to   be   deemed   to   have   been   done   or   taken   in
exercise of the powers conferred under Act 31
of 1950, as if that Act we re in force on the
day   on   which   such   thing   was   done   or   action
taken.   The   order   passed   by   the   Deputy
Custodian under
s. 6
of Ordinance 12 of 1949
was,   therefore,   for   the   purpose   of   this
proceeding,   to   be   deemed   an   order   made   in
exercise of the power conferred by Act 31 of
1950 as if that Act were in force on the day
on which the order was passed.”

297.  The ratio of judgment in
West Ramnad
(supra) has

been   repeatedly   applied   by   this   Court   in   several
judgments.

Reference is made to
Hari Singh and others

vs. The Military Estate Officer and another
, 1972 (2)

SCC   239,  which   was   a   case   rendered   by   a   seven­Judge

Constitution Bench. In paragraph 16 following has been

held:

“16. The ruling of this Court in West Ramnad
Electric   Distribution   Co.   Ltd.(1)   case
establishes  competence   of   the   legislature   to
make laws retrospective in operation for the
purpose of validation of action done under an
earlier   Act   which   has   been   declared   by   a
decision of the court to be invalid. It is to
be   appreciated   that   the   validation   is   by
virtue   of   the   provisions   of   the   subsequent
piece of legislation.”

298. Justice   Krishna   Iyer,   J.   in
Krishna   Chandra

Gangopadhyaya   and   others   vs.   The   Union   of   India   and

others
, 1975 (2) SCC 302, while considering validation

of   Act   held   that   the   Legislature   can   retrospectively

validate what otherwise was inoperative law or action.

In paragraph 25 following has been held:

“25.   The   ratio   of
West   Ramnad
(supra)   is
clear.   The   Legislature   can   retrospectively
validate   what   otherwise   was   inoperative   law
or   action.   Unhappy   wording,   infelicitous
expression   or   imperfect   or   inartistic
drafting may not necessarily defeat, for that
reason   alone,   the   obvious   object   of   the
validating   law   and   its   retrospective
content.”

299.   This   Court   again   in
ITW   Signode   India   Ltd.   vs.

Collector   of   Central   Excise
,   2004   (3)   SCC   48,  held

that   curative   statutes   by   their   very   nature   are

intended to operate upon and affect past transaction.

In paragraph 61 following has been held:

“61. A statute, it is trite, must be read as
a whole. The plenary power of legislation of
the   Parliament   or   the   State   Legislature   in
relation   to  the  legislative  fields   specified
under Seventh Schedule of the Constitution of
India is not disputed. A statutory act may be
enacted   prospectively   or   retrospectively.   A
retrospective   effect   indisputably   can   be
given   in   case   of   curative   and   validating
statute.   In   fact   curative   statutes   by   their
very nature are intended to operate upon and
affect past transaction having regard to the
fact that they operate on conditions already
existing.   However,   the   scope   of   the
validating act may vary from case to case.”

300.   The argument that an action or provision hit by

Article   14
can   never   be   validated   was   specifically

rejected   by   this   Court   in  The   State   of   Mysore   and

another vs. d. Achiah Chetty, Etc., (1969) 1 SCC 248,

in paragraph 15 following has been held:
“15. Mr. S. T. Desai, however, contends that
an acquisition hit by
Article 14
or anything
done   previously   cannot   ever   be   validated,
unless   the   vice   of   unreasonable
classification   is   removed   and   the   Validating
Act   is   ineffective   for   that   reason.   This
argument leads to the logical conclusion that
a   discrimination   arising   from   selection   of
one   law   for   action   rather   than   the   other,
when two procedures are available, can never
be righted by removing retrospectively one of
the competing laws from the field. This is a
wrong assumption....”

301.   A   statute   creates   a   legal   fiction   to   achieve   a

legislative   purpose.   We   may   refer   to   the   celebrated

judgment of Lord Asquith in  East End Dwelling Co.Ltd.

And Finsury Borough Council, 1952 AC 109, following is

the enunciation of Lord Asquith:

“If you are bidden to treat an imaginary
state   of   affairs   as   real,   you   must   surely,
unless prohibited from doing so, also imagine
as real the consequences and incidents which,
if the putative state of affairs had in fact
existed, must inevitably have flowed from or
accompanied   it...   The   statute   says   that   you
must   imagine   a   certain   state   of   affairs;   it
does   not   say   that   having   done   so,   you   must
cause   or   permit   your   imagination   to   boggle
when   it   comes   to   the   inevitable   corollaries
of that state of affairs.”

302.   Legislature   has   often   created   legal   fiction   to

save several actions which had happened prior to
enactment. Reference is made to judgment of this Court

in
Nar   Bahadur   Bhandari   and   another   vs.   State
of

sikkim and others, (1998) 5 SCC 39.  In
the above case

deeming   fiction   was   created   by
Section   30
of

Prevention   of   Corruption   Act,   1988.
Section   30

provides   that   any   action   taken   or   purported   to   have

been done or taken under or in pursuance of the Acts

so repeated shall be deemed to have been done or taken

under 1988 Act.  Following was stated in paragraph 10:

“10....In   the   present   case,   the   Act   of   1988
is the repealing Act. Sub­sec. (2) of
Section
reads as follows:

"30(2)   Notwithstanding   such   repeal,
but   without   prejudice   to   the
application   of
section   6
of   the
General   Clauses   Act   1897   (10   of
1897),   anything   done   or   any   action
taken or purported to have been done
or   taken   under   or   in   pursuance   of
the   Acts   so   repealed   shall,   in   so
far   as   it   is   not   inconsistent   with
the   provisions   of   this   Act,   be
deemed   to   have   been   done   or   taken
under   or   in   pursuance   of   the
corresponding   provision   of   this
Act."

12.   The   said   Sub­section   while   on   the   one
hand ensures that the application of
Section
of   the   General   Clauses   Act   is   not
prejudiced,   on   the   other   it   expresses   a
different   intention   as   contemplated   by   the
said
Section   6
.   The   last   part   of   the   above
Sub­section   introduces   a   legal   fiction
whereby   anything   done   or   action   taken   under
or in pursuance of the Act of 1947 shall be
deemed to have been done or taken under or in
pursuance   of   corresponding   provisions   of   the
Act of 1988. That is, the fiction is to the
effect   that   the   Act   of   1988   had   come   into
force when such thing was done or action was
taken.”

303.  An elaborate consideration on deeming fiction was

made   by   three­Judge   Bench   of   this   Court   in
State   of

Karnataka vs. State of Tamil Nadu and others
, (2017) 3

SCC   362,  one   of   us,   Justice   Dipak   Misra,   as   he   then

was, speaking for the Court in paragraphs 72 to 74:

“72.   The   second   limb   of   submission   of   Mr.
Rohatgi   as   regards   the   maintainability
pertains   to   the   language   employed   Under

Section 6(2)
of the 1956 Act, which reads as
follows:

“6(2)   The   decision   of   the   Tribunal,
after its publication in the Official
Gazette   by   the   Central   Government
under Sub­section (1), shall have the
same force as an order or decree of
the Supreme Court.”

73.   Relying   on
Section   6(2)
,   which   was
introduced by way of Amendment Act 2002 (Act
No.   14   of   2002)   that   came   into   force   from
6.8.2002, it is submitted by Mr. Rohatgi that
the   jurisdiction   of   this   Court   is   ousted   as
it   cannot   sit   over   in   appeal   on   its   own
decree.   The   said   submission   is   seriously
resisted   by   Mr.   Nariman   and   Mr.   Naphade,
learned   senior   Counsel   contending   that   the
said provision, if it is to be interpreted to
exclude the jurisdiction of the Supreme Court
of   India,   it   has   to   be   supported   by   a
constitutional amendment adding at the end of

Article   136(2)
the   words   "or   to   any
determination   of   any   tribunal   constituted
under   the   law   made   by   Parliament   Under

Article 262(2)"
and, in such a situation, in
all   possibility   such   an   amendment   to   the
Constitution may be ultra vires affecting the
power  of   judicial  review   which   is  a  part   of
basic   feature   of   the   Constitution.   Learned
senior Counsel for the Respondent has drawn a
distinction   between   the   conferment   and   the
exclusion   of   the   power   of   the   Supreme   Court
of India by the original Constitution and any
exclusion by the constitutional amendment. Be
that as it may, the said aspect need not be
adverted   to,   as   we   are   only   required   to
interpret
Section 6(2)
as it exists today on
the statute book. The said provision has been
inserted to provide teeth to the decision of
the   tribunal   after   its   publication   in   the
official   gazette   by   the   Central   Government
and   this   has   been   done   keeping   in   view   the
Sarkaria   Commission's   Report   on   Centre­State
relations (1980). The relevant extract of the
Sarkaria   Commission's   Report   reads   as
follows:

17.4.19
The   Act
was   amended in   1980
and   Section   6A   was   inserted.   This
Section provides for framing a scheme
for   giving   effect   to   a   Tribunal's
award.   The   scheme,   inter   alia
provides for the establishment of the
authority,   its   term   of   office   and
other condition of service, etc. but
the   mere   creation   of   such   an   agency
will   not   be   able   to   ensure
implementation of a Tribunal's award.

Any   agency   set   up   Under   Section   6A
cannot   really   function   without   the
cooperation of the States concerned.

Further,   to   make   a   Tribunal's   award
binding   and   effectively   enforceable,
it   should   have   the   same   force   and
sanction   behind   it   as   an   order   or
decree   of   the   Supreme   Court.   We
recommend   that   the   Act   should   be
suitably amended for this purpose.

17.6.05   ­   The   Inter­State   Water
Disputes Act, 1956 should be amended
so   that   a   Tribunal's   Award   has   the
same force and sanction behind it as
an   order   or   decree   of   the   Supreme
Court   to   make   a   Tribunal's   award
really binding.

74....Parliament   has   intentionally   used   the
words  from  which  it  can  be  construed  that  a
legal   fiction   is   meant   to   serve   the   purpose
for   which   the   fiction   has   been   created   and
not intended to travel beyond it. The purpose
is   to   have   the   binding   effect   of   the
tribunal's   award   and   the   effectiveness   of
enforceability.   Thus,   it   has   to   be   narrowly
construed regard being had to the purpose it
is meant to serve.

304.   In   paragraphs   75,   76   and   77   following   has   been

laid down:

“75.   In   this   context,   we   may   usefully   refer
to   the   Principles   of   Statutory
Interpretation,   14th   Edition   by   G.P.   Singh.
The learned author has expressed thus:

“In interpreting a provision creating
a   legal   fiction,   the   court   is   to
ascertain   for   what   purpose   the
fiction   is   created1,   and   after
ascertaining   this,   the   Court   is   to
assume   all   those   facts   and
consequences which are incidental or
inevitable corollaries to the giving
effect   to   the   fiction.   But   in   so
construing   the   fiction   it   is   not   be
extended beyond the purpose for which
is created, or beyond the language of
the Section by which it is created4.

It   cannot   also   be   extended   by
importing   another   fiction5.   The
principles   stated   above   are   'well­
settled'. A legal fiction may also be
interpreted   narrowly   to   make   the
statute workable.”

76.
In
Aneeta Hada v. Godfather Travels and
Tours
, (2012) 5 SCC 661, a three­Judge Bench
has ruled thus:

“37.
In
State   of   T.N.   v.   Arooran
Sugars   Ltd.
,   (1997)   1   SCC   326   the
Constitution   Bench,   while   dealing
with   the   deeming   provision   in   a
statute,   ruled   that   the   role   of   a
provision in a statute creating legal
fiction   is   well   settled.

Reference
was made to
Chief Inspector of Mines
v.   Karam   Chand   Thapar
,   AIR   1961   SC
838, J.K. Cotton Spg. and Wvg. Mills
Ltd.   v.   Union   of   India,   1987   Supp.

SCC 350, M. Venugopal v. LIC
, (1994)
2 SCC 323 and Harish Tandon v. ADM,
Allahabad,   (1995)   1   SCC   537   and
eventually,   it   was   held   that   when   a
statute   creates   a   legal   fiction
saying that something shall be deemed
to have been done which in fact and
truth   has   not   been   done,   the   Court
has   to   examine   and   ascertain   as   to
for   what   purpose   and   between   which
persons   such   a   statutory   fiction   is
to be resorted to and thereafter, the
courts   have   to   give   full   effect   to
such   a   statutory   fiction   and   it   has
to   be   carried   to   its   logical
conclusion.”

38.   From   the   aforesaid
pronouncements,   the   principle   that
can be culled out is that it is the
bounden   duty   of   the   court   to
ascertain for what purpose the legal
fiction has been created. It is also
the duty of the court to imagine the
fiction   with   all   real   consequences
and instances unless prohibited from
doing so. That apart, the use of the
term "deemed" has to be read in its
context   and   further,   the   fullest
logical purpose and import are to be
understood.   It   is   because   in   modern
legislation,   the   term   "deemed"   has
been used for manifold purposes. The
object   of   the   legislature   has   to   be
kept in mind.”

77. In Hari Ram,  the Court has  held that
in   interpreting   the   provision   creating   a
legal   fiction,   the   court   is   to   ascertain
for   what   purpose   the   fiction   is   created
and after ascertaining the same, the court
is   to   assume   all   those   facts   and
consequences   which   are   incidental   or
inevitable   corollaries   for   giving   effect
to the fiction.”

305.   Applying   the   ratio   of   this   Court   as   noticed

above,   it   is   clear   that   Parliamentary   legislative

intent of
Section 59
is to save all actions taken by

Central   Government   under   the   notification   dated
28.01.2009   and   notification   dated   12.09.2015   deeming

the same  to have  been validly done  under  the Aadhaar

Act by creating a legal fiction. The intention to save

all   actions   taken   under   the   aforesaid   two

notifications   and   treat   them   to   have   done   under   that

Act is clear, it is the purpose and object of Section

59.
Section 59
has to be  interpreted to give meaning

to   the   legislative   intent   to   hold   otherwise   shall

defeat   the   purpose   of
Section   59
.   As   observed,

Legislature   by   legislative   device   can   cover   actions

taken   earlier   while   creating   any   legal   fiction   which

has actually been done by
Section 59
.

306.   There is one more submission of the petitioners

to be considered. Petitioner’s case is that there was

no   consent   or   informed   consent   obtained   from

individuals   for   enrolment   made   consequent   to

notification   dated   28.01.2009,   the   notification   dated

28.01.2009 and the scheme thereafter does not clearly

indicate that the enrolment for Aadhaar was voluntary.

This   Court   has   issued   an   interim   order   directing   the

enrolment be treated as voluntary, hence, it cannot be
accepted that those got enrolled after 28.01.2009 did

not give consent. The  individual provided demographic

information   and   gave   biometric   information   and   also

signed   the   enrolment   form.     The   residents   after   the

enrolment   were   required   to   confirm   that   information

contained   were   provided   by   them   and   are   of   his   own

true   and   correct.   On   sign   slip,   he   was   required   to

sign or put his thumb impression themselves. It is on

the   record   that   more   than   100   crores   enrolment   were

completed   prior   to   enforcement   of   Aadhaar   Act   2016.

On   the   basis   of   Aadhaar   Act   large   number   of   persons

must have received benefits of subsidies and services,

thus, the enrolments prior to enforcement of Act, 2016

cannot   be declared   illegal   and   void.   In   view   of   the

aforementioned   discussion,   we   answer   the   Issue   No.12

in the following manner;

Ans.12:­
Section 59
has validated all actions taken by

the   Central   Government   under   the

notifications   dated   28.01.2009     and
12.09.2009 and all actions shall be deemed to

have been taken under the Aadhaar Act.

Issue No. 13 Whether   Collecting   the   identity
information of children between 5 to 18
years is unconstitutional?

307.
Section 5
of the Act provides that the Authority

shall take special measures to issue Aadhaar number to

women,   children,   senior   citizens,   persons   with

disability, unskilled and unorganised workers, nomadic

tribes   or   to   such   other   persons   who   do   not   have   any

permanent dwelling house and such other categories of

individuals   as   may   be   specified   by   regulations.

Section   5
contemplates   special   measures   for   issuance

of Aadhaar number to children.  The Aadhaar (Enrolment

and   Update)   Regulations,   2016   contains   some   special

measures.     One   of   the   special   measures   is
Regulation
,   which   provides   for   information   required   for

enrolment   of   children   below   five   years   of   age.

Regulation 5
is as follows:­

5.   Information   required   for   enrolment   of
children  below  five  years  of  age.  —  (1)  For
children   below   the   five   years   of   age,   the
following   demographic   and   biometric
information shall be collected:

(a) Name

(b) Date of Birth

(c) Gender

(d) Enrolment ID or Aadhaar number of
any   one   parent,   preferably   that   of
the mother in the event both parents
are   alive,   or   guardian.   The   Aadhaar
number   or   EID   of   such   parent   or
guardian   is   mandatory,   and   a   field
for   relationship   will   also   be
recorded.

(e)   The   address   of   such   child   which
is   the   same   as   that   of   the   linked
parent / guardian.

(f)   Facial   image   of   the   child   shall
be   captured.   The   biometric
information   of   any   one   parent   /
guardian   shall   be   captured   or
authenticated during the enrolment.

(2) The Proof of Relationship (PoR) document
as listed in schedule II for establishing the
relationship   between   the   linked
parent/guardian   and   the   child   shall   be
collected   at   the   time   of   enrolment.   Only
those   children   can   be   enrolled   based   on   the
relationship   document   (PoR),   whose   names   are
recorded in the relationship document.

308.   For   children   below   five,   no   core   biometric
informations   are   captured   and   only   biometric

information   of   any   one   parent/guardian   is   captured.

The objection raised by petitioners is with regard to

children between 5 to 18 years on the ground that they

being minors, parental consent is not taken.   We have

noted   above   that   for   Aadhaar   enrolment,   for

verification   of   information   consent   is   obtained   from

the   person   submitting   for   enrolment.     Thus,   the

enrolment   for   Aadhaar   number   is   on   consent   basis.

Although, it is different matter that for the purpose

of   obtaining   any   benefit   or   service,   a   person   is

obliged   to   enrol   for   Aadhaar.     The   petitioners   are

right   in   their   submissions   that   for   enrolment   of   a

children   between   5   and   18   years,   there   has   to   be

consent   of   their   parents   or   guardian   because   they

themselves   are   unable   to   give   any   valid   consent   for

enrolment.  We, thus, have to read parental consent in

Regulation   4
in   so   far   as   children   of   5   to   18   years

are   concerned   so   that   the   provision   in   reference   to

children   between   5   to   18   years   may   not   become

unconstitutional.     We   thus   answer   Question   No.   13   in
following manner:­

Ans.13:­  Parental   consent   for   providing   biometric

information  under
Regulation   3
&   demographic

information under
Regulation 4
has to be read

for   enrolment   of   children   between   5   to   18

years   to   upheld   the   constitutionality   of

Regulations 3   &   4   of   Aadhaar   (Enrolment   and

Update) Regulations, 2016.

Issue No.14 Whether   Rule   9   as   amended   by   the
Prevention   of   Money­Laundering   (Second
Amendment)   Rules,   2017   is
unconstitutional?

309.   For answering the above issue we need to advert

to the objects and scheme of the Prevention of Money­

Laundering   Act,   2002
(PMLA,   2002).   The   scheme   as

delineated   by   the   Prevention   of   Money­Laundering

(Maintenance   of   Records)   Rules,   2005   also   need   to   be

looked   into   before   coming   to   the   Second   Amendment

Rules,   2017.   The   PMLA,   2002   has   been   enacted   to

prevent   money­laundering   and   to   provide   for

confiscation of property derived from, or involved in,
money­laundering   and   for   matters   connected   therewith

or   incidental   thereto.
The   Act
has   long   Preamble

entire   of   which   needs   to   be   noted,   which   is   as

follows:

“
An   Act
to   prevent   money­laundering   and   to
provide  for  confiscation   of  property   derived
from,   or   involved   in,   money­laundering   and
for matters connected therewith or incidental
thereto.

WHEREAS   the   Political   Declaration   and
Global   Programme   of   Action,   annexed   to   the
resolution S­17/2 was adopted by the General
Assembly   of   the   United   Nations   at   its
seventeenth   special   session   on   the   twenty­
third day of February, 1990;

AND   WHEREAS   the   Political   Declaration
adopted by the Special Session of the United
Nations General Assembly held on 8th to 10th
June,   1998   calls   upon   the   Member   States   to
adopt   national   money­laundering   legislation
and programme; AND
WHEREAS   it   is   considered   necessary   to
implement   the   aforesaid   resolution   and   the
Declaration;

310.   Two   international   declarations   have   been

specifically mentioned in the Preamble which pave the

way   for   the   enactment.   The   resolution   adopted   by   the

General   Assembly   of   the   United   Nations   on

23rd  February,   1990   contained   the   recommendations on
money­laundering   of   the   Financial   Action   Task   Force

aforesaid.   The   Political   Declaration   and   Action   Plan

against money­laundering by the United Nations General

Assembly   held   on   10.06.1998   which   called   upon   the

States   Members   of   the   United   Nations   to   adopt   its

declaration to the following effect:

“Political Declaration and Action Plan
against Money Laundering
adopted at the Twentieth Special Session of
the United Nations General Assembly devoted
to “countering the world drug problem
together”
New Your, 10 June 1998(excerpts)
“We, the States Members of the United
Nations,
…   …  … …

15.     Undertake   to   make   special   efforts
against   the   laundering   of   money  linked   to
drug   trafficking   and,   in   that   context,
emphasize   the   importance   of   strengthening
international,   regional   and   subregional
cooperation,   and   recommend   that   States   that
have not yet done so adopt by the year 2003
national   money­laundering   legislation   and
programmes   in   accordance   with   relevant
provisions   of   the   United   Nations   Convention
against Illicit Traffic in Narcotic Drugs and
Psychotropic   Substances   of   1988,   as   well   as
the measures for countering money­laundering,
adopted at the present session;

… … … …
“COUNTERING MONEY­LAUNDERING”
The General Assembly,
… … … …

Emphasizing the enormous efforts of a number
of   States   to   draw   up   and   apply   domestic
legislation   that   identifies   the   activity   of
money­laundering as a criminal offence,
Realizing   the   importance of   progress   being
made   by   all   States   in   conforming   to   the
relevant   recommendations   and   the   need   for
States   to   participate   actively   in
international   and   regional   initiatives
designed   to   promote   and   strengthen   the
implementation   of   effective   measures   against
money­laundering,

1. Strongly condemns the laundering of money
derived   from   illicit   drug   trafficking   and
other serious crimes, as well as the use of
the   financial   systems   of   States   for   that
purpose;

2.   Urges   all   States   to   implement   the
provisions   against   money­laundering   that   are
contained   in   the   United   Nations   Convention
against Illicit Trafficking in Narcotic Drugs
and   Psychotropic   Substances   of   1988   and   the
other   relevant   international   instruments   on
money­laundering,   in   accordance   with
fundamental   constitutional   principles,   by
applying the following principles:

(a) Establishment of a legislative framework
to   criminalize   the   laundering   of   money
derived   from   serious   crimes   in   order   to
provide   for   the   prevention,   detection,
investigation and prosecution of the crime of
money­laundering through, inter alia:

(i)   Identification,   freezing,   seizure   and
confiscation of the proceeds of crime;
(ii)   International   cooperation;   and   mutual
legal   assistance   in   cases   involving   money­
laundering;

(iii)   Inclusion   of   the   crime   of   money­
laundering   in   mutual   legal   assistance
agreements   for   the   purpose   of   ensuring
judicial   assistance   in   investigations,   court
cases   or   judicial   proceedings   relating   to
that crime;

(b)   Establishment   of   an   effective   financial
and   regulatory   regime   to   deny   criminals   and
their   illicit   funds   access   to   national   and
international   financial   systems,   thus
preserving the integrity of financial systems
worldwide   and   ensuring   compliance   with   laws
and   other   regulations   against   money­
laundering through:

(i)   Customer   identification   and   verification
requirements applying the principle of "know
your   customer",   in   order   to   have   available
for   competent   authorities   the   necessary
information   on   the   identity   of   clients   and
the financial movements that they carry out;

(ii) Financial record­keeping;

(iii)   Mandatory   reporting   of   suspicious
activity;

(iv)   Removal   of   bank   secrecy   impediments   to
efforts directed at preventing, investigating
and punishing money­laundering;

(v) Other relevant measures;

(c)   Implementation   of   law   enforcement
measures to provide tools for, inter alia:

(i)   Effective   detection,   investigation,
prosecution   and   conviction   of   criminals
engaging in moneylaundering activity;

(ii) Extradition procedures;
(iii) Information­sharing mechanisms;”

311.   The   modern   world   is   more   focused   on   economic

growth.   Every   nation   tries   to   march   forward   in

achieving   the   rapid   economic   growth.   Economics   is

factor which not only plays a major role in the future

of nation but also in all human organisations. Most of

the   individuals   also   aspire   for   their   financial   well

being   but   for   the   financial   system   and   working   of

economic, road blocks are felt both by the nations and

human   organisations.     The   siphoning   away   of   huge

volumes   of   money   from   normal   economic   growth   poses   a

real danger to the economics and affects the stability

of   the   global   market   which   also   empowers   corruption

organised   crime.   Proceeds   of   money­laundering   are

disguised to acquire properties and other assets or to

make   investments.   At   some   stage   money­laundering

involves conversion process with the objective to give

the appearance that the money has a legitimate source.

The   banking   and   financial   secrecy   is   another

bottleneck for countries who genuinely want to counter

money­laundering.   It   is   inherent   in   the   activity   of
money­laundering   to   keep   the   entire   process   secret.

The   Parliament   with   the   objectives   outlined   in   the

international declaration enacted the
PMLA Act
. Para 1

of   the   Statement   of   Objects   and   Reasons   of   Act   is

stated as follows:

“STATEMENT OF OBJECTS AND REASONS
It   is   being   realised,   world   over,   that
money­laundering   poses   a   serious   threat   not
only   to   the   financial   systems   of   countries,
but also to their integrity and sovereignty.
Some   of   the   initiatives   taken   by   the
international   community   to   obviate   such
threat are outlined below:—

(a)   the United   Nations   Convention   Against
Illicit   Traffic   in   Narcotic   Drugs   and
Psychotropic Substances, to which India is a
party, calls for prevention of laundering of
proceeds   of   drug   crimes   and   other   connected
activities   and   confiscation   of   proceeds
derived from such offence.

(b)   the   Basle   Statement   of   Principles,
enunciated   in   1989,   outlined   basic   policies
and   procedures   that   banks   should   follow   in
order to assist the law enforcement agencies
in tackling the problem of moneylaundering.

(c)   the   Financial   Action   Task   Force
established   at   the   summit   of   seven   major
industrial   nations,   held   in   Paris   from   14th
to 16th July, 1989, to examine the problem of
money­laundering   has   made   forty
recommendations, which provide the foundation
material   for   comprehensive   legislation   to
combat   the   problem   of   moneylaundering.   The
recommendations were classified under various
heads. Some of the important heads are—

(i)   declaration   of   laundering   of
monies carried through serious crimes
a criminal offence;

(ii)   to   work   out   modalities   of
disclosure   by   financial   institutions
regarding reportable transactions;

(iii) confiscation of the proceeds of
crime;

(iv) declaring money­laundering to be
an extraditable offence; and

(v)   promoting   international   co­
operation   in   investigation   of
moneylaundering.

(d)   the   Political   Declaration   and   Global
Programme of Action adopted by United Nations
General Assembly by its Resolution No. S­17/2
of   23rd   February,   1990,   inter   alia,   calls
upon   the   member   States   to   develop   mechanism
to   prevent   financial   institutions   from   being
used for laundering of drug related money and
enactment   of   legislation   to   prevent   such
laundering.

(e) the United Nations in the Special Session
on   countering   World   Drug   Problem   Together
concluded  on   the  8th   to  the  10th  June,  1998
has   made   another   declaration   regarding   the
need   to   combat   moneylaundering.   India   is   a
signatory to this declaration.

….................................”

312.   Paragraph   two   of   the   Statement   of   Objects   and

Reasons   noticed   the   legislative   process   which   was
initiated   by   introducing  the   Prevention   of   Money­

Laundering Bill, 1998  which was introduced in the Lok

Sabha. The Bill was referred to the Standing Committee

on   Finance,   which   submitted   its   report   on   04.03.1999

to   the   Lok   Sabha.   Various   recommendations   of   the

Standing   Committee   were   accepted   by   the   Central

Government   and   made   provisions   of   the   said

recommendations in the Bill. Thereafter, the Bill was

presented in the Parliament which after receiving the

assent   of   the   President   published   in   the   Gazette   on

01.07.2005.   Act,   2002   has   been   amended   by   various

Parliamentary   Acts.   By   amendments   made   in   the   year

2013 by Act 2 of 2013, the  Legislature has  attempted

to keep the pace with the other countries of the world

by   making   more   stringent   provision   to   prevent   money­

laundering which is the root as well as the result of

the   black   money   economy.   Money­laundering   is   defined

under
Section 3
which is to the following effect:

“3.   Offence   of   money­Laundering.­Whosoever
directly or indirectly attempts to indulge or
knowingly assists or knowingly is a party or
is   actually   involved   in   any   process   or
activity   connected   proceeds   of   crime
including   its   concealment,   possession,
acquisition or use and projecting or claiming
it   as   untainted   property   shall   be   guilty   of
offence of money­laundering.”

313.
Section 2 (ha)
defines client and
Section 2(wa)

defines reporting entity which are as follows;

“2.(ha)   "client"   means   a   person   who   is
engaged   in   a   financial   transaction   or
activity with a reporting entity and includes
a   person   on   whose   behalf   the   person   who
engaged   in   the   transaction   or   activity,   is
acting;

(wa)   "reporting   entity"   means   a   banking
company,   financial   institution,   intermediary
or a person carrying on a designated business
or profession;”

314.
Section   12
lays   down   various   obligations   on

reporting entity to maintain records.
Section 12(1)(c)

reads:

“
Section   12
.   Reporting   entity   to   maintain
records.­(l) Every reporting entity shall­
… … … …

(c)   verify   the   identity   of   its
clients in such manner and subject to
such   conditions,   as   may   be
prescribed; “
315.   The   Central   Government   in   exercise   of   its   rule

making power has made Rules, namely, the Prevention of

Money­laundering   (Maintenance   of   Records)   Rules,   2005

(hereinafter   referred   to   as   “Rules,   2005).   In   the

present   case   challenge   is   to   Rule   9   as   amended   by

Second   Amendment   Rules,   2017.   We   may   thus   notice   the

amendments   made   in   Rule   9   by   Second   Amendment   Rules,

2017.     By   Second   Amendment   Rules,   2017,   sub­Rule   (4)

to   sub­Rule   (9)   of   Rule   9   were   substituted   in

following manner:

“(b) in rule 9, for sub­rule (4) to sub­rule
(9),   the   following   sub­rules   shall   be
substituted, namely:—
“(4)   Where   the   client   is   an   individual,   who
is   eligible   to   be   enrolled   for   an   Aadhaar
number, he shall for the purpose of sub­rule
(1) submit to the reporting entity,—

(a) the Aadhaar number issued by the
Unique   Identification   Authority   of
India; and

(b)   the   Permanent   Account   Number   or
Form No. 60 as defined in Income­tax
Rules, 1962,
and such other documents including in
respect of the nature of business and
financial status of the client as may
be required by the reporting entity:
Provided   that   where   an   Aadhaar
number   has   not   been   assigned   to   a
client,   the   client   shall   furnish
proof of application of enrolment for
Aadhaar   and   in   case   the   Permanent
Account Number is not submitted, one
certified   copy   of   an   'officially
valid document' shall be submitted.

Provided further that photograph
need   not   be   submitted   by   a   client
falling under clause (b) of sub­rule
(1).

(4A)   Where   the   client   is   an   individual,   who
is not eligible to be enrolled for an Aadhaar
number, he shall for the purpose of sub­rule
(1),   submit   to   the   reporting   entity,   the
Permanent   Account   Number   or   Form   No.   60   as
defined in the Income­tax Rules, 1962:

Provided   that   if   the   client   does   not
submit the Permanent Account Number, he shall
submit   one   certified   copy   of   an   ‘officially
valid   document'   containing   details   of   his
identity   and   address,   one   recent   photograph
and such other documents including in respect
of   the   nature   or   business   and   financial
status   of   the   client   as   may   be   required   by
the reporting entity.

(5)   Notwithstanding   anything   contained   in
sub­rules   (4)   and   (4A),   an   individual   who
desires to open a small account in a banking
company   may   be   allowed   to   open   such   an
account   on   production   of   a   self­attested
photograph   and   affixation   of   signature   or
thumb print, as the case may be, on the form
for opening the account:

Provided that­

(i)   the   designated   officer   of   the
banking   company,   while   opening   the
small   account,   certifies   under   his
signature that the person opening the
account has affixed his signature or
thump print, as the case may be, in
his presence;

(ii)   the   small   account   shall   be
opened only at Core Banking Solution
linked banking company branches or in
a   branch   where   it   is   possible   to
manually   monitor   and   ensure   that
foreign remittances are not credited
to   a   small   account   and   that   the
stipulated   limits   on   monthly   and
annual aggregate of transactions and
balance   in   such   accounts   are   not
breached,   before   a   transaction   is
allowed to take place;

(iii) the small account shall remain
operational initially for a period of
twelve   months,   and   thereafter   for   a
further   period   of   twelve   months   if
the   holder   of   such   an   account
provides evidence before the banking
company of having applied for any of
the officially valid documents within
twelve   months   of   the   opening   of   the
said   account,   with   the   entire
relaxation provisions to be reviewed
in respect of the said account after
twenty­four months;

(iv)   the   small   account   shall   be
monitored and when there is suspicion
of   money   laundering   or   financing   of
terrorism   or   other   high   risk
scenarios,   the   identity   of   client
shall   be   established   through   the
production   of   officially   valid
documents, as referred to in sub­rule
(4)   and   the   Aadhaar   number   of   the
client or where an Aadhaar number has
not   been   assigned   to   the   client,
through   the   production   of   proof   of
application   towards   enrolment   for
Aadhaar   along   with   an   officially
valid document;

Provided   further   that   if   the
client is not eligible to be enrolled
for   an   Aadhaar   number,   the   identity
of   client   shall   be   established
through   the   production   of   an
officially valid document;

(v) the foreign remittance shall not
be   allowed   to   be   credited   into   the
small account unless the identity of
the   client   is   fully   established
through the production of officially
valid   documents,   as   referred   to   in
sub   rule   (4)   and   the   Aadhaar   number
of   the   client   or   where   an   Aadhaar
number   has   not   been   assigned   to   the
client,   through   the   production   of
proof   of   application   towards
enrolment   for   Aadhaar   along   with   an
officially valid document:

Provided   that   if   the   client   is
not   eligible   to   be   enrolled for   the
Aadhaar   number,   the   identity   of
client   shall   be   established   through
the production of an officially valid
document.

(6)  Where  the  client   is  a  company,   it  shall
for   the   purposes   of   sub­rule   (1),   submit   to
the reporting entity the certified copies of
the following documents:—

(i) Certificate of incorporation;

(ii)   Memorandum   and   Articles   of
Association;
(iii) A resolution from the Board of
Directors   and   power   of   attorney
granted to its managers, officers or
employees to transact on its behalf;

(iv) (a) Aadhaar numbers; and

(b) Permanent Account Numbers or Form
60   as   defined   in   the   Income­tax
Rules, 1962.

issued   to   managers,   officers   or
employees   holding   an   attorney   to
transact   on   the   company’s   behalf   or
where an Aadhaar number has not been
assigned,   proof   of   application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted   an   officially   valid
document shall be submitted:

Provided that for the purpose of
this clause if the managers, officers
or   employees   holding   an   attorney   to
transact on the company's behalf are
not   eligible   to   be   enrolled   for
Aadhaar number and do not submit the
Permanent   Account   Number,   certified
copy of an officially valid document
shall be submitted.

(7)   Where   the   client   is   a   partnership   firm,
it   shall,   for   the   purposes   of   sub­rule   (1),
submit to the reporting entity the certified
copies of the following documents:—

(i) registration certificate;

(ii) partnership deed; and

(iii) (a) Aadhaar number; and

(b) Permanent Account Number or Form
60   as   defined   in   the   Income­tax
Rules, 1962.
issued   to   the   person   holding   an
attorney to transact on its behalf or
where an Aadhaar number has not been
assigned,   proof   of   application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted   an   officially   valid
document shall be submitted:

Provided that for the purpose of
this clause, if the person holding an
attorney to transact on the company's
behalf is not eligible to be enrolled
for   Aadhaar   number   and   does   not
submit the Permanent Account Number,
certified copy of an officially valid
document shall be submitted.

(8)   Where   the   client   is   a   trust,   it   shall,
for   the   purposes   of   sub­rule   (1)   submit   to
the reporting entity the certified copies of
the following documents:—

(i) registration certificate;

(ii) trust deed; and

(iii) (a) Aadhaar number; and

(b) Permanent Account Number or Form
60   as   defined   in   the   Income­tax
Rules, 1962,
issued   to   the   person   holding   an
attorney to transact on its behalf or
where   Aadhaar   number   has   not   been
assigned,   proof   of   application
towards enrolment for Aadhaar and in
case Permanent Account Number is not
submitted   an   officially   valid
document shall be submitted:

Provided   that   for   the   purpose
of this clause if the person holding
an   attorney   to   transact   on   the
company's   behalf   is   not   eligible   to
be   enrolled   for   Aadhaar   number   and
does not submit the Permanent Account
Number,   certified   copy   of   an
officially   valid   document   shall   be
submitted.

(9)   Where   the   client   is   an   unincorporated
association   or   a   body   of   individuals,   it
shall   submit   to   the   reporting   entity   the
certified copies of the following documents:—

(i)   resolution   of   the   managing   body
of   such   association   or   body   of
individuals;

(ii) power of attorney granted to him
to transact on its behalf;

(iii) (a) the Aadhaar number; and

(b) Permanent Account Number or Form
60   as   defined   in   the   Income­tax
Rules, 1962,
issued   to   the   person   holding   an
attorney to transact on its behalf or
where   Aadhaar   number   has   not   been
assigned,   proof   of   application
towards enrolment for Aadhaar and in
case the Permanent Account Number is
not   submitted   an   officially   valid
document shall be submitted; and

(iv)   such   information   as   may   be
required   by   the   reporting   entity   to
collectively establish   the   legal
existence   of   such   an   association   or
body of individuals:

Provided that for the purpose of
this clause if the person holding an
attorney to transact on the company’s
behalf is not eligible to be enrolled
for   Aadhaar   number   and   does   not
submit the Permanent Account Number,
certified copy of an officially valid
document shall be submitted.”

(c)   after   sub­rule   (14),   the
following   sub­rules   shall   be
inserted, namely,—
“(15)   Any   reporting   entity,   at   the
time of receipt of the Aadhaar number
under provisions of this rule, shall
carry out authentication using either
e­KYC   authentication   facility   or
Yes/No   authentication   facility
provided   by   Unique   Identification
Authority of India.

(16)   In   case   the   client   referred   to
in sub­rules (4) to (9) of rule 9 is
not   a   resident   or   is   a   resident   in
the   States   of   Jammu   and   Kashmir,
Assam   or   Maghalaya   and   does   not
submit the Permanent Account Number,
the   client   shall   submit   to   the
reporting   entity   one   certified   copy
of   officially   valid   document
containing   details   of   his   identity
and   address,   one   recent   photograph
and such other document including in
respect of the nature of business and
financial status of the client as may
be required by the reporting entity.

(17) (a) In case the client, eligible
to be enrolled for Aadhaar and obtain
a Permanent Account Number, referred
to in sub­rules (4) to (9) of rule 9
does not submit the Aadhaar number or
the   Permanent   Account   Number   at   the
time   of   commencement   of   an   account
based   relationship   with   a   reporting
entity,   the   client   shall   submit   the
same   within   a   period   of   six   months
from the date of the commencement of
the account based relationship:

Provided   that   the   clients,
eligible   to   be   enrolled   for   Aadhaar
and   obtain   the   Permanent   Account
Number,   already   having   an   account
based   relationship   with   reporting
entities   prior   to   date   of   this
notification, the client shall submit
the   Aadhaar   number   and   Permanent
Account   Number   by   31st   December,
2017.

(b)   As   per   regulation   12   of   the
Aadhaar   (Enrolment   and   Update)
Regulations,   2016,   the   local
authorities in the State Governments
or   Union­territory   Administrations
have become or are in the process of
becoming UIDAI Registrars for Aadhaar
enrolment and are organising special
Aadhaar enrolment camps at convenient
locations   for   providing   enrolment
facilities in consultation with UIDAI
and   any   individual   desirous   of
commencing   an   account   based
relationship   as   provided   in   this
rule,   who   does   not   possess   the
Aadhaar   number   or   has   not   yet
enrolled for Aadhaar, may also visit
such special Aadhaar enrolment camps
for   Aadhaar   enrolment   or   any   of   the
Aadhaar   enrolment   centres   in   the
vicinity with existing registrars of
UIDAI.

(c)   In   case   the   client   fails   to
submit   the   Aadhaar   number   and
Permanent   Account   Number   within   the
aforesaid six months period, the said
account shall cease to be operational
till the time the Aadhaar number and
Permanent Account Number is submitted
by the client:

Provided   that   in   case   client
already   having   an   account   based
relationship   with   reporting   entities
prior   to   date   of   this   notification
fails   to   submit   the   Aadhaar   number
and Permanent Account Number by 31st
December,   2017,   the   said   account
shall   cease   to   be   operational   till
the   time   the   Aadhaar   number   and
Permanent Account Number is submitted
by the client.

(18) In case the identity information
relating   to   the   Aadhaar   number   or
Permanent Account Number submitted by
the   client   referred   to   in   sub­rules
(4)   to   (9)   of   rule   9   does   not   have
current   address   of   the   client,   the
client   shall   submit   an   officially
valid   document   to   the   reporting
entity.”

316.   The challenge to Second Amendment Rules, 2017 is

on   the   ground   that   it   violate
Articles   14
,   19(1)(g)
,
and
300A
of the Constitution of India; Sections 3,

7   and   51   of   the   Aadhaar   Act   and   also   ultra   vires   to

the provisions of
PMLA Act, 2002
.

317. Elaborating his submissions Shri Arvind P. Datar

learned   senior   counsel   submits   that   Second   Amendment

Rules violate
Article 14
and
since persons choosing
not   to   enrol   for   Aadhaar   number   cannot   operate   bank

account   and   valid   explanation   has   to   be   given   as   to

why all banks have to be authenticated.

318.   Violative  of
Article  19(1)(g)
because  the  Rules

refer   to   companies,   firms,   trusts,   etc.   whereas

Aadhaar   Act   is   only   to   establish   identity   of

individuals.   Violative   of
Article   300A
since   even

temporary   deprivation   can   only   be   done   by   primary

legislation.   The   Second   Amendment   Rules   do   not   pass

proportionality   test.   No   proper   purpose   has   been

established.   No   explanation   has   been   given   that   the

measures   undertaken   to   such   are   rationale   and

connected to the fulfillment of the purpose and there

are   no   alternative   measures   with   a   lesser   degree   of

legislation. When the banks have already verified all

accounts   as   per   e­KYC   norms,   it   is   completely

arbitrary   to   make   permanent   linking/seeding   of   all

Aadhaar   numbers   with   the   bank   accounts.   Second

Amendment   Rules   fail   to   satisfy   the   proportionality

test, are irrational, and manifestly arbitrary.
319.   Shri   Tushar   Mehta,   learned   Additional   Solicitor

General   refuting   the   submission,   submits   that   Second

Amendment Rules carry on the object of 2002, Act. The

verification of bank account by way of Aadhaar is done

for the reason that often bank accounts are opened in

either   fictitious   names   or   in   the   name   of   wrong

persons on the basis of forged identity documents and

financial   crimes   are   committed.   It   is   seen   that

accommodation entries are mostly provided through the

banking   channels   by   bogus   companies   to   convert   black

money   into   white.   Benami   transactions   routinely   take

place through banking channels. All of the above, can

to a large extent be checked by verifying Aadhaar with

bank   accounts   to   ensure   that   the   account   belongs   to

the   person   who   claims   to   be   the   account   holder   and

that   he   or   she   is   a   genuine   person.   Verification   of

bank account with Aadhaar also ensures that the direct

benefit   transfer   of   subsidies   reach   the   Aadhaar

verified   bank   account   and   is   not   diverted   to   some

other account. Shell companies are often used to open

bank   accounts   to   hold   unaccounted   money   of   other
entities under fictitious identities   which will also

be curbed once Aadhaar verification is initiated.

320.    Now,   we   come   to   the   respective   submissions   of

the parties. A perusal of the Second Amendment Rules,

2017 indicates that the State has sought to make the

provisions   of   PMLA   more   robust   and   ensure   that   the

ultimate   object   of   the   Act   is   achieved.
Aadhaar   Act,
having been enacted with effect from 01.07.2016,

it   was   decided   to   get   the   accounts   verified   by

Aadhaar.   Amended   Rules   help all   concerned   to   detect

fictitious,   ghost   and   benami   accounts.   The   object   of

the   PMLA   and   the   definition   of   beneficial   owner   Act

seeks   to   traverse   behind   the   corporate   veil   of   shell

companies and spurious Directors in order to ascertain

the   real   natural   persons   controlling   the   accounts   in

the reporting entities. The Amendment Rules applicable

to reporting entities and the legitimate aim sought to

be   achieved   by   the   State   that   is   conclusive

identification   of   a   natural   person   or   the   beneficial

owner.   The statutory rules cast an obligation on all

account   holders   to   get   their   identity   verified   by
Aadhaar   mechanism   and   those   who   are   already   holding

account   in   the   reporting   entity   they   are   required   to

submit   the   Aadhaar   number   or   proof   of   their   applied

Aadhaar   identity.   When   a   statute   puts   obligation   on

account   holder   to   get   identity   verification   in   a

particular manner a person chose not to obtain Aadhaar

number   cannot   complain   his   dis­entitlement   of

operating   his   account.   The   submission   of   the

petitioner   that   there   is   no   valid   explanation   as   to

why   all   bank   accounts   have   to   be   authenticated   also

cannot be accepted. Aadhaar provides a mechanism truly

identifies   an   account   holder,   which   eliminates

fraudulent accounts existed of non­existed persons and

in ghost names. The object of inserting the Rule is to

make it possible to weed out  fake and duplicate PANs

and   false   bank   accounts.   The   Second   Amendment   Rules

are step in direction to cure the menace of  fake bank

accounts   held   by   the   shell   companies   in   the   name   of

dummy   directors,   money   laundering,   terror   financing

etc. It is  relevant to  notice that  Aadhaar number is

required   to   be   given   at   the   time   of   opening   of   the
account   based     relationship   and   not   for   every

transaction   conducted   by   an   account   holder   of   the

bank.   Those   who   have   already   existing   accounts   are

required to submit only once their Aadhaar number for

verification. The requirement of Aadhaar number being

given   only   for   once   is   not   any   cumbersome   or   undue

burden on an account holder. The object of the Second

Amendment   Rules   is   towards   the   legitimate   aim   of   the

State   and having   nexus   with   the   object   sought   to   be

achieved   by   the   enactment.   The   submission   of   Aadhaar

number   only   once   by   an   account   holder   is   a

proportionate   measure.   We   have   already   referred   to

judgments   where   doctrine   of   proportionality   has   been

expounded. While adjudging a statutory provision from

the   angle   of   the   proportionality   the   Court   has   to

examine   as   to   whether   statutory   measure   contained   in

statutory   provision   is   not   excessive   as   against   the

object   which   seeks   to   achieve.   The   legislature   has

margin of discretion while providing for one or other

measures   to   achieve   an   object.   Unless   the   measures

foully   unreasonable   and   disproportionate,   court   does
not normally substitutes its opinion. On the basis of

Rule   9(17)(c),   petitioner   contends   that   in   the   event

account holder fails to submit the Aadhaar number and

PAN     within   a     period   as   mentioned   in   the   aforesaid

Rules   account   shall   cease   to   be   operational   till   the

time   Aadhaar   number   and   PAN   is   submitted   by   the

client. Petitioner alleged violation of
Article 300A.

The petitioner’s  case is  that account of a person is

his property to which he cannot be deprived, saved by

the   authority   of   law.     For   non­submission   of   Aadhaar

number and PAN only consequence which is contemplated

by   sub­rule   (c)   is   that   account   shall   cease   to   be

operational.   We   are   of   the   view   that   the   account

remains belonging to the account holder and the amount

in   the   account   is   only   his   amount   and   there   is   no

deprivation   of   the   property   of   account   holder.   Under

the   banking   rules   and   procedures,   there   are   several

circumstances   where   account   becomes   un­operational.   A

non­operational   account   also   is   an   account   which

belongs to the account holder and amount laying in the

non­operational   account   is   neither   forfeited   by   the
bank   nor   taken   out   from   the   said   account.   Further,

account   is   ceased   operational   only   till   the   time

Aadhaar number and PAN is submitted. The consequences

provided is only to effectuate the purpose of the Act

and   the   Rules   i.e.   account   be   verified   by   Aadhaar

mechanism. It is not the intent to deprive the account

holder of the amount lying in the account.   We, thus,

do   not   find   any   substance   in   the   submission   of   the

petitioner   that   Rule   9(17)(c)   violates   right   under

Article   300A.
Aadhaar   number   providing   for

verification of an  account also cannot be held to be

violating right under
Article 21.
The reporting entity

i.e.   banks   and   financial   institutions   under   various

statutes are required to provide information of a bank

account to different authorities including income tax

authority, account verification by Aadhaar is not for

the purpose of keeping a track on the transaction done

by an individual. As noted above Aadhaar number has to

be given only once for opening of the account or for

verification   of   the   account   and   transactions   are   not
to  be made  on the basis of  Aadhaar verification each

time.

321.     One   of   the   submissions   which   has   been   made   by

the   petitioner   also   is   that   Rules   violate
Article

19(1)(g).
It   is   submitted   that Rule   refers   to

companies,   firms,   trusts   etc.   whereas   Aadhaar   Act   is

only to establish identity of individual. For example

sub­rule (6) of Rule 9 as amended by Second Amendment

Rules,   2017   provides   that   where   client   is   a   company,

it shall for the purposes of sub­rule (1),   submit to

the   reporting   entity   the   certified   copies   of   the

documents   enumerated   therein.   Rule   requiring   Aadhaar

number   and   PAN   or   Form   60   as   defined   in   Income   Tax

Rules, 1962, issued to managers, officers or employees

holding   an   attorney   to   transact   on   the   company’s

behalf,  is for the purpose to find out the beneficial

owner   behind   the   company.   One   of   the   objects   of   the

Act   is   to   detect   money­laundering   wherever   it   is

found.   Inquiring   details   of   the   company   to   find   out

shell   companies   and   ghost   companies   and   the   real

beneficial  owner  cannot be said to be foreign to the
object   of   the   Act.   Companies,   partnership   firms,

trusts   or   incorporated   institutions     or   body   of

individuals   cannot   complain   any   violation   of   rights

under
Article   19(1)(g).
There   is   no   amount   of

restriction in the right of aforesaid in carrying out

any profession, or any trade or business. Petitioners

have also contended that amended Rule 9 also violates

Section   3,   7   and   51   of   the   Aadhaar   Act.
Section   3

provides for enrolment under Aadhaar scheme.
Section 7

provides   for   requirement   of proof   of   Aadhaar   number

for   receipt   of   certain   subsidies,   benefits   and

services, etc.
Section 51
relates to delegation by the

authority   to any Member, officer of the authority or

any   other   person   such   of   the   powers   and   functions

under the said Act except the power under
Section 54
.

Rules cannot be held in any manner violating
Sections
,
and
.  The rules provide for use of Aadhaar for

verification of bank account by law as contemplated by

Section 57 of the Aadhaar Act.

322.   It is further submitted that Amendment Rules are

also     ultra   vires   to   the   PMLA,   2002.   Shri   Arvind   P
Datar   has   also   referred   to   judgment   of   the   U.K.

Supreme   Court   in  Bank   Mellat   v.   Her   Majesty’s

Treasury,   (2013)   UKSC   39.  He   has   relied   on   principle

of proportionality as summed in paragraph 20 which is

to the following effect:

“20....The classic formulation of the test is
to   be   found   in   the   advice   of   the   Privy
Council,   delivered   by   Lord   Clyde,   in   De
Freitas v Permanent Secretary of Ministry of
Agriculture,   Fisheries,   Lands   and   Housing
[1999]   1   AC   69   at   80.
But   this   decision,
although   it   was   a   milestone   in   the
development of the law, is now more important
for the way in which it has been adapted and
applied in the subsequent case­law, notably
R
(Daly)   v   Secretary   of   State
for   the   Home
Department [2001] 2 AC 532 (in particular the
speech of Lord Steyn), R v Shayler [2003] 1
AC   247   at   paras   57­59   (Lord   Hope   of
Craighead),   Huang   v   Secretary   of   State   for
the Home Department [2007] 2 AC 167 at para
19 (Lord Bingham of Cornhill) and R (Quila) v
Secretary   of   State   for   the   Home   Department
[2012] 1 AC 621 at para 45.  Their effect can
be   sufficiently   summarised   for   present
purposes by saying that the question depends
on   an   exacting   analysis   of   the   factual   case
advanced in defence of the measure, in order
to   determine   (i)   whether   its   objective   is
sufficiently   important   to   justify   the
limitation   of   a   fundamental   right;   (ii)
whether   it   is   rationally   connected   to   the
objective;   (iii)   whether   a   less   intrusive
measure   could   have   been   used;   and   (iv)
whether,   having   regard   to   these   matters   and
to   the   severity   of   the   consequences,   a   fair
balance has been struck between the rights of
the   individual   and   the   interests   of   the
community.  These   four   requirements   are
logically   separate,   but   in   practice   they
inevitably overlap because the same facts are
likely   to   be   relevant   to   more   than   one   of
them.”(emphasis added)

323.   The  principles of  proportionality  as  noticed  in

the   aforesaid   judgment   are   substantially   same   which

had   been   laid   down   in
Puttaswamy
case  and
Modern

Dental
(supra)  only   one   difference   in   the   above   two

judgments is that although both the judgments noticed

the   least   intrusive   test   but   in   ultimate   conclusion

the   said   test   was   not   reflected   in   the   ratio   of   the

above two judgments.

324.
In   the   foregoing   discussions,   we   come   to   the

conclusion that Rule 9 of Second Amendment Rules, 2017

fully   satisfies   three­fold   test   as
laid   down   in

Puttaswamy
case  and   the   submission   that   the   Rule   is

unconstitutional has to be rejected.   We answer Issue

No. 14 in the following manner:­

Ans.14:­ Rule 9 as amended by PMLA (Second Amendment)

Rules, 2017 is not unconstitutional and does

not violate
Articles 14
, 19(1)(g)
, 21

& 300A
of the Constitution and Sections 3, 7 & 51 of

the  Aadhaar  Act.    Further  Rule  9  as  amended

is not ultra vires to
PMLA Act, 2002
.

Issue No. 15 Circular   dated   23.03.2017   issued   by
Ministry   of   Communications,   Department
of Telecommunications

325.   The petitioners have attacked the circular dated

23.03.2017   and   submitted   that   the   circular   is   ultra

vires.     By   circular   dated   23.03.2017,   Department   of

Telecommunications   has   directed   that   all   licensees

shall   re­verify   all   existing   mobile   subscribers

(prepaid   and   postpaid)   through   Aadhaar   based   e­kyc

process.     Petitioners   submitted   that   linking   the   sim

with   Aadhaar   number   is   breach   of   privacy   violating

Article   21
of   the   Constitution.     Elaborating   their

challenge,   it   is   contended   that   circular   dated

23.03.2017 is not covered by any of the provisions of

Aadhaar   Act   neither
Section   7
nor
Section   57
.

Circular dated 23.03.2017 is not a law under Part III

of   the   Constitution   and   thus   same   cannot   put   any

restriction   on   privacy   right.     It   is   submitted   that
circular dated 23.03.2017 does not satisfy three­fold

test as
laid down in
Privacy judgment.

326.   Learned   counsel   for   the   respondents   justifying

the linking of Aadhaar with sim card submits that non­

verifying   sim   cards,   have   caused   serious   security

threats,   which   has   been   noticed   by   this   Court   in

several   judgments.     It   is   submitted   that   circular

dated   23.03.2017   was   issued   on   the   basis   of

recommendation   of   Telecom   Regulatory   Authority   of

India.     Respondents   further   submits   that   circular

dated 23.03.2017 has been issued in reference to this

Court's   direction   in
Lokniti   Foundation   Vs.   Union   of

India   and   Another
,   (2017)   7   SCC   155.     This   court

having approved the action, no exception can be taken

by   the   petitioner   to   the   circular   dated   23.03.2017.

It is submitted that the Central Government, which has

right to  grant  license can  always put a condition in

the   license   obliging   the   licensee   to   verify   the   sim

cards under the Aadhaar verification.   To impose such

condition   is   in   the   statutory   power   granted   to   the

Government   under
Section   4
of   the   Indian   Telegraph
Act, 1885.

327.   We   need   to   scrutinise   the   circular   dated

23.03.2017   on   the   ground   of   attack   alleged   by   the

petitioners   and   justification   as   offered   by   the

respondents.     Circular   dated   23.03.2017   has   been

addressed   by   the   Ministry   of   Communications,

Department   of   Telecommunications   to   all     Unified

Licensees/Unified   Access   Service   Licensees/Cellular

Mobile   Telephone   Service   Licensees   with   subject:

implementation   of   orders   of   Supreme   Court   regarding

100%   E­KYC   of   existing   subscribers.     Para   1   to   3   of

the   circular   may   be   noticed,   which   are   to   the

following effect:­

“Hon'ble   Supreme   Court,   in   its   order
dated 06.02.2017 passed in Writ Petition
(C)  No.   607/2016   filed   by
Lokniti
Foundation   v/s   Union   of   India
,   while
taking into cognizance of "Aadhaar based
E­KYC  process  for issuing  new  telephone
connection"  issued   by   the   Department,
has   inter­alia   observed   that  "an
effective process has been  evolved to ensure
identity   verification,   as   well   as,   the
addresses of all mobile phone subscribers  for
new subscribers. In the near future, and more
particularly,   within   one   year   from   today,   a
similar   verification   will   be   completed,   in
case of existing subscribers."  This amounts
to a  direction which is to be completed
within a time frame of one year.

2. A meeting was held on 13.02.2017 in
the Department with the telecom industry
wherein   UIDAI,   TRAI   and   PMO
representatives   also   participated   to
discuss the way forward to implement the
directions   of   Hon'ble   Supreme   Court.

Detailed   discussions  and   deliberations
were   held   in   the   meeting.   The
suggestions   received   from   the   industry
have been examined in the Department.

3. Accordingly,   after   taking   into
consideration   the   discussions   held   in
the   meeting   and   suggestions   received
from   telecom   industry,   the   undersigned
is   directed   to   convey  the   approval   of
competent   authority   that   all   Licensees
shall   re­verify   all   existing   mobile
subscribers   (prepaid   and   postpaid)
through Aadhaar based E­KYC process as
mentioned in this office letter no. 800­
29/2010­VAS   dated   16.08.2016.   The
instructions  mentioned   in   subsequent
paragraphs   shall   be   strictly   followed
while   carrying   out   the  re­verification
exercise.”
328.   The   circular   of   the   Department   of

Telecommunications directing   the   licensees   to

mandatorily   verify   existing   sim   subscribers   in   turn

resulted   in   mobile   telephone   service   licensees

directing the subscribers to get their sim seeded with

Aadhaar.     Repeated   messages   and   directions   have   been

issued by Cellular Mobile Telephone Service operators.

Compulsory seeding of Aadhaar with mobile numbers has

to be treated to be an intrusion in Privacy Right of a

person.  Any invasion on the Privacy Right of a person

has   to   be   backed   by   law   as   per   the three­fold   test

enumerated in
Puttaswamy
case (supra).  Existence of a

law   is   the   foremost   condition   to   be   fulfilled   for

restricting any Privacy Right.  Thus, we have to first

examine whether circular dated 23.03.2017 can be said

to be a 'law'.

329.   The law as explained in
Article 13(3)
has to be

applied   for   finding   out   as   to   what   is   law.
Article

13(3)(a)
gives   an   inclusive   definition   of   law   in

following words:­

(a) “law” includes any Ordinance, order, bye­
law,   rule,   regulation,   notification,   custom
or usage having in the territory of India the
force of law;

330.  The circular dated 23.03.2017 at best is only an

executive   instruction   issued   on   23.03.2017   by   the

Ministry   of   Communications,   Department   of

Telecommunications.     The   circular   does   not   refer   to

any statutory provision or statutory base for issuing

the circular.   The subject of circular as noted above

indicate   that   circular   has   been   issued   for

implementation   of   orders   of   Supreme   Court   regarding

100%   E­KYC   based   re­verification   of   existing

subscribers.     It   is   necessary   to   notice   the   judgment

of   this   Court   dated   06.02.2017,   a   reference   to   which

is   made   in   the   circular   itself.     The   order   dated

06.02.2017 was issued by this Court in a Writ Petition

filed   by
Lokniti   Foundation   Vs.   Union   of   India   and

Another
, (2017) 7 SCC 155.  The petitioners have filed

a   writ   petition   with   a   prayer   that   identity   of   each

subscriber and also the members should be verified so

that   unidentified  and   unverified   subscribers   cannot

misuse mobile phone.   After issuing the notice, Union
of India had filed a counter affidavit, where Union of

India   stated   that   Department   has   launched   Aadhaar

based   E­KYC   for   issuing   mobile   connections   on

16.8.2016.

331.   Paras 2 to 6 of the judgment, which is relevant

for the present purpose are as follows:­

2. Consequent   upon   notice   being   issued   to
the Union of India, a short counter affidavit
has been filed on its behalf, wherein, it is
averred as under:

“22. That however, the department has
launched   `Aadhaar   based   E­KYC   for
issuing   mobile   connections'   on   16th
August, 2016 wherein the customer as
well as Point of Sale (PoS) Agent of
the   TSP   will   be   authenticated   from
Unique   Identification   Authority   of
India   (UIDAI)   based   on   their
biometrics and their demographic data
received from UIDAI is stored in the
database   of   TSP   along   with   time
stamps.   Copy   of   letter   No.800­
29/2010­VAS   dated   16.08.2016   is
annexed   herewith   and   marked   as
Annexure R­1/10.

23.   As   on   31.01.2017,   111.31   Crores
Aadhaar   card   has   been   issued   which
represent   87.09%   of   populations.

However, still there are substantial
number   of   persons   who   do   not   have
Aadhaar card because they may not be
interested in having Aadhaar being 75
years or more of age or not availing
any   benefit   of   pension   or   Direct
Benefit   Transfer   (DBT).   Currently
Aadhaar   card   or   biometric
authentication   is   not   mandatory   for
obtaining a new telephone connection.

As   a   point   of   information,   it   is
submitted that those who have Aadhaar
card/number normally use the same for
obtaining a new telephone connection
using   E­KYC   process   as   mobile
connection can be procured within few
minutes   in   comparison   to   1­2   days
being taken in normal course.

24. That in this process, there will
be   almost   `NIL'   chances   of   delivery
of   SIM   to   wrong   person   and   the
traceability   of   customer   shall
greatly   improve.   Further,   since   no
separate   document   for   Proof   of
Address or Proof of Identity will be
taken in this process, there will be
no chances of forgery of documents.”

3.   The   learned   Attorney   General,   in   his
endeavour to demonstrate the effectiveness of
the   procedure,   which   has   been   put   in   place,
has invited our attention to the application
form, which will be required to be filled up,
by   new   mobile   subscribers,   using   e­KYC
process. It was the submission of the learned
Attorney   General,   that   the   procedure   now
being   adopted,   will   be   sufficient   to
alleviate   the   fears,   projected   in   the   writ
petition.

4.   Insofar   as   the   existing   subscribers   are
concerned, it was submitted on behalf of the
Union   of   India,   that   more   than   90%   of   the
subscribers   are   using   pre­paid   connections.
It   was   pointed   out,   that   each   pre­paid
connection holder, has to per force renew his
connection   periodically,   by  making   a   deposit
for   further   user.   It   was   submitted,   that
these   90%   existing   subscribers,   can   also   be
verified   by   putting   in   place   a   mechanism,
similar   to   the   one   adopted   for   new
subscribers. Learned Attorney General states,
that   an   effective   programme   for   the   same,
would   be   devised   at   the   earliest,   and   the
process   of   identity   verification   will   be
completed   within   one   year,   as   far   as
possible.

5. In view of the factual position brought to
our   notice   during   the   course   of   hearing,   we
are   satisfied,   that   the   prayers   made   in   the
writ   petition   have   been   substantially   dealt
with,   and   an   effective   process   has   been
evolved   to   ensure   identity   verification,   as
well   as,   the   addresses   of   all   mobile   phone
subscribers for new subscribers. In the near
future,   and   more   particularly, within   one
year from today, a similar verification will
be   completed,   in   the   case   of   existing
subscribers.   While   complimenting   the
petitioner   for   filing   the   instant   petition,
we   dispose   of   the   same   with   the   hope   and
expectation,   that   the   undertaking   given   to
this Court, will be taken seriously, and will
be given effect to, as soon as possible.

6.   The   instant   petition   is   disposed   of,   in
the above terms.”

332.   Para   5   of   the   judgment   contains   the   operative

portion of the order, which states "we dispose of the

same   with   the   hope   and   expectation,   that   the

undertaking   given   to   this   Court,   will   be   taken
seriously,   and   will   be   given   effect   to,   as   soon   as

possible”.  The order of this Court as extracted above

itself  states that  the Court itself did not give any

direction   rather   noticed   the   stand   of   Union   of   India

where it informed to the Court that the department has

already   launched   Aadhaar   based   e­KYC   for   issuing

mobile  connections.   For  90 per cent of the existing

subscribers,   Attorney   General   has   stated   that   an

effective   programme   would   be   devised   at   the   earliest

and will be completed within one year.

333.   We   are   clear   in   our   mind   that   this   Court   on

06.02.2017   only   noticed   the   stand   of   the   Union   of

India and disposed of the writ petition expecting that

undertaking given to this Court shall be given effect

to.

334.   The circular dated 23.03.2017 cites the order of

this   Court   as   a   direction,   which   according   to

department   was   to   be   completed   within   the   time   frame

of one year.  Circular further states that the meeting

was   held   on   13.02.2017   in   the   Department   with   the
telecom   industry   wherein   UIDAI,   TRAI   and   PMO

representatives also participated.

335.   This Court thus in
Lokniti
case (supra)  did not

examine the Aadhaar based e­KYC process in context of

right of privacy.  Thus, the order of this Court dated

06.02.2017   cannot   absolve   the   Government   from

justifying its circular as per law.

336.  One of the submissions, which has been raised by

the   respondents   to   cite   a   statutory   base   to   the

circular   is   that   the   circular   has   been   issued   in

pursuance of recommendation made by TRAI under
Section

11(1)(a)
of   TRAI   Act,   1997.
Section   11
of   the   TRAI

Act, 1997   provides for function of authority
Section

11(1)(a)
:­

(a)  make recommendations, either suo motu or
on   a   request   from   the   licensor,   on   the
following matters, namely:—

(i)   need   and   timing   for   introduction   of
new service provider;

(ii)   terms and conditions of licence to
a service provider;

(iii)     revocation   of   licence   for   non­
compliance   of   terms   and   conditions   of
licence;
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337.   One   of   the   functions   of   the   TRAI   is   to   give

recommendations as per
Section 11(1)(a)
on the matters

enumerated therein.   The recommendations of TRAI were

only   recommendations   and   the   mere   fact   that   circular

dated   23.03.2017   was   issued   after   the   recommendation

was   sent   by   TRAI,   circular   dated   23.03.2017   does   not

acquire   any   statutory   character.     Circular   dated

23.03.2017 thus cannot be held to be a law within the

meaning of Part III of the Constitution.

338.   Shri   Rakesh   Dwivedi,   learned   counsel   appearing

for   the   respondents   has   submitted   that   the   Central

Government   being   licensor,   it   is   fully   entitled   to

provide   for   any   condition   in   its   license,   which

condition becomes binding on the licensee.   Referring

to   license   agreement   for   Unified   Licensees,   Shri

Dwivedi   submits   that   one   of   the   conditions   in   the

agreement   was   Condition   No.   16.1   which   is   to   the

following effect:­

"16.1     The   Licensee   shall   be   bound   by   the
terms   and   conditions   of   this   License
Agreement   as   well   as   instructions   as   are
issued   by   the   Licensor   and   by   such
orders/directions/regulations   of   TRAI   as   per
provisions   of   the
TRAI   Act,   1997
as   amended
from time to time.”

339.   Shri   Dwivedi   has   also   relied   on   a   number   of

judgments   in   support   of   his   submissions   that

conditions can be validly laid down.  he has relied on

Bagalkot   Cement   Co.   Ltd.   Vs.   R.K.   Pathan   and   Others
,

AIR   1963   SC   439,   where   this   Court   while   considering

the
Industrial Employment (Standing Orders) Act, 1946

observed   that   object   of   the   Act   was   to   require   the

employers to make the conditions of employment precise

and   definite   and   the   Act   ultimately   intended   to

prescribe   these   conditions   in   the   form   of   Standing

Orders so that what used to be governed by a contract

herebefore   would   now   be   governed   by   the   Statutory

Standing Orders.

340.   The  above  judgment at  best can be  read to  mean

that conditions, which are enumerated in the Standing

Orders become statutory conditions.  No benefit of the

judgment   can   be   taken   by   the   respondents   in   the
present case since even if it is put in the condition

in the agreement between licensee and subscribers that

licensee   shall   be   bound   to   instructions   as   issued   by

licensor, the said condition does not become statutory

nor take shape of a law.
Sukhdev Singh and Others Vs.

Bhagatram Sardar Singh Raghuvanshi and Another
, (1975)

1 SCC 421 was relied, where this Court held that rules

and   regulations   framed   by   ONGC,   LIC   and   Industrial

Finance   Corporation   have   the   force   of   law.     There

cannot be any denial that rules framed under statutory

provisions will have force of law, thus, this
case has

no   application
.

Similarly, reliance   on
Lily   Kurian

Vs. Sr. Lewina and Others
, (1979) 2 SCC 124, Alpana V.

Mehta   Vs.   Maharashtra   State   Board   of   Secondary

Education   and   Another,   (
1984)   4   SCC   27,  St.   Johns

Teachers   Training   Institute   Vs.   Regional   Director,

National   Council
for   Teacher   Education   and   Another,

(2003)   3   SCC     321  were   all   cases,   where   conditions

were   laid   down   under   the   regulations,   which   were

statutory   in   nature.     Those   cases   in   no   manner   help

the respondents.
341.  Shri Dwivedi has also relied on judgment of this

Court in
Union of India and Another Vs. Association of

Unified Telecom Service Providers of India and Others
,

(2011) 10 SCC 543.   This Court referring to
Section 4

of the Telegraph Act laid down following in paragraph

39:­

“39.   The   proviso   to   Sub­section   (1)   of

Section   4
of   the   Telegraph   Act,   however,
enables   the   Central   Government   to   part   with
this   exclusive   privilege   in   favour   of   any
other   person   by   granting   a   license   in   his
favour   on   such   conditions   and   in
consideration   of   such   payments   as   it   thinks
fit.   As   the   Central   Government   owns   the
exclusive   privilege   of   carrying   on
telecommunication activities   and   as   the
Central   Government   alone   has   the   right   to
part   with   this   privilege   in   favour   of   any
person by granting a license in his favour on
such conditions and in consideration of such
terms   as   it   thinks   fit,   a   license   granted
under proviso to Sub­section (1) of
Section 4

of   the   Telegraph   Act   is   in   the   nature   of   a
contract   between   the   Central   Government   and
the licensee.”

342.   There cannot be any dispute to the right of the

Central Government to part with exclusive privilege in

favour   of   any   person   by   granting   license   on   such   a

condition   and   in   consideration   of   such   terms   as   it
thinks   fit.     But   mere   issuing   an   instruction   to   the

licensees   to   adopt   mandatory   process   of   e­KYC   by

Aadhaar   verification   in   no   manner   exalt   the

instructions   or   directives   as   a   law.     Circular   dated

23.03.2017,   thus,   cannot   be   held   to   be   a   law   and

direction   to   re­verification   of   all   existing   mobile

subscribers through Aadhaar based e­KYC cannot be held

to be backed by law, hence cannot be upheld.

343.   There   is   one   more aspect   of   the   matter,   which

needs   to   be   looked   into.     Aadhaar   Act   has   only   two

provisions   under   which   Aadhaar   can   be   used,   i.e.

Section   7
and
Section   57
.     Present   is   not   a   case   of

Section 7
since present is not a case of receiving any

subsidy,   benefit   or   service.     What
Section   57

contemplate is that "use of Aadhaar can be provided by

a law".  Words "by a law" used in
Section 57
obviously

mean   a   valid   law   framed   by   competent   legislation   and

other than the Aadhaar Act.  No law has been framed by

permitting   use   of   Aadhaar   for   verification   of   sim   of

existing   subscribers.     There   being   no   law   framed   for

such use of Aadhaar,
Section 57
is also not attracted.
344.   There   are   only   above   two   contingencies,   where

Aadhaar   can   be   used   and circular   dated   23.03.2017

being   not   covered   by   any   of   above   contingencies,

circular dated 23.03.2017 deserves to be set aside.

Ans.15:­  Circular   dated   23.03.2017   being

unconstitutional is set aside.

Issue No. 16 Whether Aadhaar Act is a Money Bill and
decision   of   Speaker   certifying   it   as
Money   Bill   is   not   subject   to   Judicial
Review of this Court?

345.  The Aadhaar Act has been passed by Parliament as

Money   Bill.     Shri   P.   Chidambaram,   learned   senior

counsel   appearing   for   the   petitioners   contends   that

Aadhaar Act  is not a Money Bill, it being not covered

by   any   of   the   Clauses   under
Article   110
of   the

Constitution   of   India.     He   further   submits   that

decision   of   the   Speaker   certifying   Aadhaar   Bill   as

Money   Bill   being   illegal   and   contrary   to   the   express

constitutional   provisions   deserves   to   be   interfered

with and such decision of the Speaker is also subject

to   Judicial   Review   by   this   Court.     The   word   “only”
used in
Article 110
has significance and a Bill, which

does   not   contain   only,   the   provisions   pertaining   to

Clause   (a)   to   (f)   cannot   be   regarded   as   Money   Bill.

Respondents cannot fall   on Clause (g) to support the

Money Bill, which clause cannot be invoked unless the

provisions  of Bill  are covered  by any of  the clauses

from (a) to (f).

346.   Shri   K.K.   Venugopal,   learned   Attorney   General

refuting   the   above   submission   submits   that   Aadhaar

Bill   has   correctly   been   passed   as   Money   Bill.     He

submits that the certification granted by Speaker that

Aadhaar   Bill   is   a   Money   Bill   has   been   made   final   by

virtue   of
Article   110(3)
,   hence   it   cannot   be

questioned   in   any   Court.     The   decision   of   Speaker

certifying   the   Bill   as   Money   Bill   is   not   subject   to

Judicial   Review.     It   is   further   submitted   by   learned

Attorney General that even on looking the Aadhaar Bill

on   merits,   it   satisfies   the   conditions   as   enumerated

under
Article 110(1).
He submits that Aadhaar Bill is

clearly   referable   to   Clause(c),   Clause(e)   and

Clause(g)   of
Article   110(1).
He   submits   that   the
heart   of   the   Aadhaar   Act   is
Section   7
which   is   with

regard   to   payment   of   subsidies,   benefits   or   services

and   for   which   the   expenditure   is   incurred   form   the

Consolidated   Fund   of   India.
Article   122
also   puts   an

embargo in questioning validity of any proceedings in

Parliament.     Certification   of   Bill   as   Money   Bill   is

matter   of   Parliamentary   procedure   hence
Article   122

also save
the said decision
from being questioned in a

Court of Law.

347.
Article   110
and
Article   122
,   which   falls   for

consideration in the present case are as follows:­

“110. Definition of "Money Bills".­
(1) For the purposes of this Chapter, a Bill
shall   be   deemed   to   be   a   Money   Bill   if   it
contains only provisions dealing with all or
any of the following matters, namely:­

(a)   the   imposition,   abolition,
remission,   alteration   or   regulation
of any tax;

(b)   the   regulation   of   the   borrowing
of   money   or   the   giving   of   any
guarantee by the Government of India,
or   the   amendment   of   the   law   with
respect to any financial obligations
undertaken or to be undertaken by the
Government of India;

(c)   the   custody   of   the   Consolidated
Fund   or   the   Contingency   Fund   of
India, the payment of moneys into or
the   withdrawal   of   moneys   from   any
such Fund;

(d)   the   appropriation   of   moneys   out
of the Consolidated Fund of India;

(e) the declaring of any expenditure
to   be   expenditure   charged on   the
Consolidated   Fund   of   India   or   the
increasing of the amount of any such
expenditure;

(f)   the   receipt   of   money   on   account
of the Consolidated Fund of India or
the   public   account   of   India   or   the
custody or issue of such money or the
audit of the accounts of the Union or
of a State; or

(g)   any   matter   incidental   to   any   of
the matters specified in sub­clauses

(a) to (f).

(2) A Bill shall not be deemed to be a Money
Bill by reason only that it provides for the
imposition   of   fines   or   other   pecuniary
penalties,   or   for   the   demand   or   payment   of
fees   for   licences   or   fees   for   services
rendered,   or   by   reason   that   it   provides   for
the   imposition,   abolition,   remission,
alteration   or   regulation   of   any   tax   by   any
local authority or body for local purposes.

(3) If any question arises whether a Bill is
a   Money   Bill   or   not,   the   decision   of   the
Speaker   of   the   House   of   the   People   thereon
shall be final.

4)   There   shall   be   endorsed   on   every   Money
Bill when it is transmitted to the Council of
States   under
article   109
,   and   when   it   is
presented   to   the   President   for   assent   under

article   111
,   the   certificate   of   the   Speaker
of the House of the People signed by him that
it is a Money Bill.
122.   Courts   not   to   inquire   into   proceedings
of   Parliament.­(1)   The   validity   of   any
proceedings in Parliament shall not be called
in   question   on   the   ground   of   any   alleged
irregularity of procedure.

(2)   No   officer   or   member   of   Parliament   in
whom  powers   are   vested   by   or   under   this
Constitution  for   regulating  procedure   or   the
conduct   of   business,   or   for   maintaining
order, in Parliament shall be subject to the
jurisdiction   of   any   court   in   respect   of   the
exercise by him of those powers.”

348.   We   need   to   first   advert   to   the   submission

pertaining   to   question   as   to   whether   decision   of

Speaker   certifying   the   Bill   as   Money   Bill   is   subject

to  Judicial Review  of this  Court  or being related to

only procedure, is immuned from Judicial Review under

Article   122.

Article   110(3)
gives   finality   to   the

decision of the Speaker of the House of the People on

question   as   to   whether   a   Bill   is   Money   Bill   or   not.

The   word   occurring   in   sub­article   (3)   of
Article   110

are “shall be final”.
Article 122(1)
puts an embargo

on   questioning   the   validity   of   any   proceeding   in   the

Parliament  on   the   ground   of   any   alleged   irregularity

or   procedure.     The   Constitution   uses   different

expressions   in   different   articles   like   “shall   be
final”,   “shall   not   be   questioned”,   “shall   not   be

questioned in any Court of Law” etc.

349.   This   Court has   examined   the   scope   of   Judicial

Review   in   reference   to   Parliamentary   proceedings.     A

similar   Constitutional   provision   giving   finality   to

the decision of the Speaker is contained in Para 6 of

Tenth   Schedule   where   a   question   whether   a   person   has

become   disqualified   or   not   is   to   be   referred   to   the

decision   of   the   Chairman   or   the   Speaker   and   his

decision   shall   be   final.     Para   6   sub­clause(1)   is

quoted as below:­

“6.   Decision   on   questions   as   to
disqualification on ground of defection.— (1)
If any question arises as to whether a member
of   a   House   has   become   subject   to
disqualification   under   this   Schedule,   the
question   shall   be   referred   for   the   decision
of the Chairman or, as the case may be, the
Speaker of such House and his decision shall
be final:

Provided   that   where   the   question   which
has  arisen  is  as   to  whether  the  Chairman   or
the Speaker of a House has become subject to
such   disqualification,   the   question  shall   be
referred   for   the   decision   of   such   member   of
the   House   as   the   House   may   elect   in   this
behalf and his decision shall be final.”
350.   The  Constitution  Bench had occasion  to consider

Para   6   in
Kihoto   Hollohan   Vs.   Zachillhu   and   Others
,

1992   Supp.   (2)   SCC   651,   Justice   M.N.   Venkatachaliah,

as   he   then   was   elaborately   considered   the   rival

contentions.   It was also contended before this Court

that   in   view   of   the   finality   of   the   decision   of   the

Speaker in Para 6 of Tenth Schedule, the  decision of

the   Speaker   is   beyond   Judicial   Review.     In   Para   78,

following has been stated:­

“78.   These   two   contentions   have   certain
overlapping   areas   between   them   and   admit   of
being dealt with together. Paragraph 6(1) of
the   Tenth   Schedule   seeks   to   impart   a
statutory   finality   to   the   decision   of   the
Speaker   or   the   Chairman.   The   argument   is
that,   this   concept   of   `finality'   by   itself,
excludes   Courts'   jurisdiction.   Does  the  word
"final"   render   the   decision   of   the   Speaker
immune   from   Judicial   Review?   It   is   now   well
accepted   that   a   finality   clause   is   not   a
legislative   magical   incantation   which   has
that   effect   of   telling   off   Judicial   Review.

Statutory   finality   of   a  decision   presupposes
and   is   subject   to   its   consonance   with   the
statute...............”

In Para 80 to 85, following has been held:­

80.
In
Durga   Shankar   Mehta   v.   Raghuraj
Singh
,   AIR   1954   SC   520   the   order   of   the
Election   Tribunal   was   made   final   and
conclusive   by
Section   105
of   the
Representation   of   the   People   Act,   1951.   The
contention   was   that   the   finality   and
conclusiveness   clauses   barred   the
jurisdiction   of   the   Supreme   Court   under
Article 136. This contention was repelled. It
was observed: (AIR p. 522)
...[B]ut once it is held that it is a
judicial   tribunal   empowered   and
obliged   to   deal   judicially   with
disputes   arising   out   of   or   in
connection   with   election,   the
overriding   power   of   this   Court   to
grant special leave, in proper cases,
would certainly be attracted and this
power   cannot   be   excluded   by   any
parliamentary legislation.

...   But   once   that   Tribunal   has   made
any determination or adjudication on
the matter, the powers of this Court
to interfere by way of special leave
can always be exercised......

...   The   powers   given   by
Article   136

of   the   Constitution   however   are   in
the   nature   of   special   or   residuary
powers which are exercisable outside
the purview of ordinary law, in cases
where   the   needs   of   justice   demand
interference by the Supreme Court of
the land....

Section   105
of   the
Representation   of   the   People   Act
certainly   gives   finality   to   the
decision of the Election Tribunal so
far as that Act is concerned and does
not   provide   for   any   further   appeal
but that cannot in any way cut down
or effect the overriding powers which
this Court can exercise in the matter
of   granting   special   leave   under
Article 136
of the Constitution.

81. Again, in
Union of India v. Jyoti Prakash
Mitter
[1971]   3   SCR   483   a   similar   finality
clause in
Article 217(3)
of the Constitution
camp   up   for   consideration.   This   Court   said:

(SCC pp.410­1, Para32)
...The President acting under
Article
217(3)
performs   a   judicial   function
of grave importance under the scheme
of our Constitution. He cannot act on
the   advice   of   his   Ministers.

Notwithstanding the declared finality
of   the   order   of   the   President   the
Court has jurisdiction in appropriate
cases to set aside the order, if it
appears   that   it   was   passed   on
collateral   considerations   or   the
rules   of   natural   justice   were   not
observed,   or   that   the   President's
judgment   was   coloured   by   the   advice
or   representation   made   by   the
executive   or   it   was   founded   on   no
evidence."

82.     Referring   to   the   expression   "final"

occurring   in   Article   311(3)   of   the
Constitution this Court in Union of India v.

Tulsiram Patel, [1985] Supp. 2 SCR 131 held:

(SCC p.507. Para 138)
...The   finality   given   by   Clause   (3)
of
Article   311
to   the   disciplinary
authority's decision that it was not
reasonably   practicable   to   hold   the
inquiry   is   not   binding   upon   the
court.   The   court   will   also   examine
the   charge   of   mala   fides,   if   any,
made   in   the   writ   petition.   In
examining   the   relevancy   of   the
reasons, the court will consider the
situation   which   according   to   the
disciplinary   authority   made   it   come
to   the   conclusion   that   it   was   not
reasonably   practicable   to   hold   the
inquiry. If the court finds that the
reasons   are   irrelevant,   then   the
recording of its satisfaction by the
disciplinary   authority   would   be   an
abuse   of   power   conferred   upon   it   by
Clause (b)....

83.   If   the   intendment   is   to   exclude   the
jurisdiction   of   the   superior   Courts,   the
language   would   quite   obviously   have   been
different.   Even   so,   where   such   exclusion   is
sought   to   be   effected   by   an   amendment   the
further   question   whether   such   an   amendment
would   be   destructive   of   a   basic   feature   of
the  Constitution   would   arise.   But   comparison
of the language in
Article 363(1)
would bring
out in contrast the kind of language that may
be necessary to achieve any such purpose.

84. In
Brundaban Nayak v. Election Commission
of   India
[1965]   3   SCR   53,   in   spite   of
finality   attached   by
Article   192
to   the
decision   of   the   Governor   in   respect   of
disqualification incurred   by   a   member   of   a
State Legislature subsequent to the election,
the  matter  was   examined  by   this  Court  on   an
appeal by special leave under
Article 136
of
the Constitution against the decision of the
High Court dismissing the writ petition filed
under
Article   226
of   the   Constitution.

Similarly in
Union of India v. Jyoti Prakash
Mitter
[1971] 3 SCR 483, in spite of finality
attached   to   the   order   of   the   President   with
regard to the determination of age of a Judge
of the High Court under
Article 217(3)
of the
Constitution,   this   Court   examined   the
legality of the order passed by the President
during the pendency of an appeal filed under

Article 136
of the Constitution.

85.   There   is   authority   against   the
acceptability   of   the   argument   that   the   word
"final"   occurring   in   Paragraph   6(1)   has   the
effect   of   excluding   the   jurisdiction   of   the
Courts in
Articles 136
, 226
and 227.”

351.   The   above   Constitution   Bench   Judgment   clearly

support   the   case   of   the petitioners   that   finality

attached to the decision of the Speaker under
Article

110(3)
does   not   inhibit   the   Court   in   exercising   its

Judicial Review. We may also refer to the Constitution

Bench judgment of this Court in Special Reference No.

1   of   1964,   AIR   1965   SC   745   where   this   Court   had

occasion to consider
Article 212
, which is a provision

relating to the legislature of the State  para materia

to
Article 122.
Constitution Bench has held that what

is   protected   under
Article   212
from   being   questioned

is   on   the   ground   of  any   alleged   irregularity   or

procedure.   The said ground does not apply in case of

illegality   of   the   decision.     The   next   case,   which

needs   to   be   considered   is   again   a   Constitution   Bench

judgment   of   this   Court   in  Raja   Rampal   Vs.   Hon'ble

Speaker, Lok Sabha and Others, (2007) 3 SCC 184.   The

Constitution   Bench
in
the   above   case
had   occasion   to
consider the question of issue of Judicial Review of a

decision   of   Speaker   disqualifying   from   membership   of

the   Parliament.     A   submission   was   raised   before   the

Court   by   virtue   of
Article   122
of   the   Constitution,

which puts an embargo on questioning any proceeding of

the Parliament, the decision of the Speaker is immuned

from   the   Judicial   Review.   The   above   submission   has

been noticed in Para 364 of the judgment in following

words:­

“364. The submissions of the learned Counsel
for   the   Union   of   India   and   the   learned
Additional Solicitor General seek us to read
a   finality   clause   in   the   provisions   of

Article   122(1)
in   so   far   as   parliamentary
proceedings are concerned. On the subject of
finality clauses and their effect on power of
judicial review, a number of cases have been
referred   that   may   be   taken   note   of   at   this
stage. ”

352.  In Paras 376, 377, 384 and 386 following has been

held:­

“376.   In   our   considered   view,   the   principle
that   is   to   be   taken   note   of   in   the
aforementioned   series   of   cases   is   that
notwithstanding   the   existence   of   finality
clauses,   this   Court   exercised   its
jurisdiction   of  judicial   review  whenever   and
wherever   breach   of   fundamental rights   was
alleged.   The   President   of   India   while
determining the question of age of a Judge of
a   High   Court   under
Article   217(3)
,   or   the
President   of   India   (or   the   Governor,   as   the
case   may   be)   while   taking   a   decision   under

Article   311(3)
to   dispense   with   the
ordinarily mandatory inquiry before dismissal
or   removal   of   a   civil   servant,   or   for   that
matter   the   Speaker   (or   the   Chairman,   as   the
case   may   be)   deciding   the   question   of
disqualification under   Para   6   of   the   Tenth
Schedule   may   be   acting   as   authorities
entrusted   with   such   jurisdiction   under   the
constitutional provisions. Yet, the manner in
which they exercised the said jurisdiction is
not   wholly   beyond   the   judicial   scrutiny.   In
the   case   of   the   Speaker   exercising
jurisdiction   under   the   Tenth   Schedule,   the
proceedings   before   him   are   declared   by   Para
6(2) of the Tenth Schedule to be proceedings
in   Parliament   within   the   meaning   of   Article

122.   Yet,   the   said   jurisdiction   was   not
accepted as non­justifiable. In this view, we
are   unable   to   subscribe   to   the   proposition
that there is absolute immunity available to
the   Parliamentary   proceedings   relating   to

Article   105(3).
It   is   a   different   matter   as
to   what   parameters,   if   any,   should   regulate
or   control   the   judicial   scrutiny   of   such
proceedings.

377. In U.P. Assembly case (Special Reference
No.1 of 1964), AIR 1965 SC 745, the issue was
authoritatively settled by this Court, and it
was  held,  at  SCR   pp.  455­56,   as  under:  (AIR
p.768, para 62)
“Article   212(1)   seems   to   make   it
possible   for   a   citizen   to call   in
question in the appropriate court of
law   the   validity   of   any   proceedings
inside   the   legislative   chamber   if
his   case   is   that the   said
proceedings   suffer   not   from   mere
irregularity   of   procedure,   but   from
an   illegality.  If   the   impugned
procedure   is   illegal   and
unconstitutional, it would be open to
be   scrutinized   in   a   court   of   law,
though such scrutiny is prohibited if
the   complaint   against   the   procedure
is   no   more   than   this   that   the
procedure was irregular.”
(Emphasis supplied)

384.   The   prohibition   contained in
Article
122(1)
does not provide immunity in cases of
illegalities.
In   this   context,   reference   may
also   be   made   to
Sarojini   Ramaswami   v.   Union
of   India
,  (1992)  4  SCC   506.  The  case   mainly
pertained   to
Article   124(4)
read   with   the

Judges   (Inquiry)   Act,   1968
.   While   dealing,
inter alia, with the overriding effect of the
rules   made   under
Article   124(5)
over   the
rules   made   under
Article   118
,   this   Court   at
pp.   187­88   made   the   following   observations:

(SCC p. 572, para 94)
“94.     We   have   already   indicated   the
constitutional   scheme   in   India   and
the true import of clauses(4) and (5)
of
Article   124
read   with   the   law
enacted under
Article 124(5)
, namely,
the
Judges   (Inquiry)   Act,   1968
and
the   Judges   (Inquiry)   Rules,   1969,
which,   inter   alia   contemplate   the
provision   for   an   opportunity   to   the
Judge concerned to show cause against
the finding of 'guilty' in the report
before   Parliament   takes   it   up   for
consideration   along   with   the   motion
for   his   removal.   Along   with   the
decision   in   U.P.   Assembly   Case
(Special Reference No. 1 of 1964) has
to   be   read   the   declaration   made   in
Sub­Committee   on   Judicial
Accountability,   (1991)   4   SCC   699
that 'a law made under
Article 124(5)

will   override   the   rules   made   under

Article   118
and   shall   be   binding   on
both   the   Houses   of   Parliament.  A
violation   of   such   a   law   would
constitute   illegality   and   could   not
be   immune   from   judicial   scrutiny
under
Article   122(1).'
The   scope   of
permissible   challenge   by   the   Judge
concerned   to   the   order   of   removal
made   by   the   President   under
Article
124(4)
in   the   judicial   review
available   after   making   of   the   order
of   removal   by   the   President will   be
determined on these considerations.”
(Emphasis supplied)

386.
Article   122(1)
thus   must   be   found   to
contemplate   the   twin   test   of   legality   and
constitutionality   for   any   proceedings   within
the   four   walls   of   Parliament.   The   fact   that
the   U.P.   Assembly   case   (Special   Reference
No.1 of 1964) dealt with the exercise of the
power of the House beyond its four walls does
not   affect   this   view   which   explicitly
interpreted   a   constitutional   provision
dealing   specifically   with   the   extent   of
judicial   review   of   the   internal   proceedings
of   the   legislative   body.   In   this   view,

Article 122(1)
displaces the English doctrine
of   exclusive   cognizance   of   internal
proceedings of the House rendering irrelevant
the   case   law   that   emanated   from   courts   in
that   jurisdiction.   Any   attempt   to   read   a
limitation into
Article 122
so as to restrict
the   court's   jurisdiction   to   examination   of
the   Parliament's   procedure   in   case   of
unconstitutionality, as opposed to illegality
would   amount   to   doing   violence   to   the
constitutional   text.   Applying   the   principle
of   "expressio   unius   est   exclusio   alterius"

(whatever   has   not   been   included   has   by
implication   been   excluded),   it   is   plain   and
clear that prohibition against examination on
the touchstone of "irregularity of procedure"

does   not   make   taboo   judicial   review   on
findings   of   illegality   or
unconstitutionality.”

353.   The   above   case   is   a   clear   authority   for   the

proposition   that
Article   122
does   not   provide   for

immunity in case of illegality.   What is protected is

only   challenge   on   the   ground   of   any   irregularity   or

procedure.   The immunity from calling in question the

Parliamentary   decision   on   the   ground   of   violation   of

procedure as has been provided in the Constitution is

in   recognition   of   the   principles   that   Parliament   has

privilege regarding procedure and any challenge on the

ground   of   violation   of   any   procedure   is   not

permissible.

354.   Shri   K.K.   Venugopal   relied   on   Two   Judgments   of

this Court in support of his submission namely,  Mohd.

Saeed Siddiqui Vs. State of Uttar Pradesh and Another,
(2014)   11   SCC   415  and  Yogendra   Kumar   Jaiswal   and

Others   Vs.   State   of   Bihar   and   Others,   (2016)   3   SCC

183.    He   submits   that   in   both   the   decisions,   this

Court while dealing with the question of challenge to

Money   Bill   has   clearly   held   that   the   decision   of

Speaker certifying a Bill as Money Bill is final and

cannot be questioned.

355.   We   need   to   consider   the   above   decisions   in

detail.
Mohd.   Saeed   Siddiqui
(supra)  was   a   judgment

delivered by a Three Judge Bench of this Court.   U.P.

Lokayukta Act and U.P. Lokayukta (Amendment) Act, 2012

was   subject   matter   of   challenge.     One   of   the

submissions in that regard has been noted in Para 12,

which is to the following effect:­

“12.   It   was   further   submitted   by   Mr.
Venugopal that the Amendment Act was not even
passed by the State Legislature in accordance
with   the   provisions   of   the   Constitution   of
India and is, thus, a mere scrap of paper in
the eye of the law. The Bill in question was
presented  as   a  Money   Bill  when,  on   the  face
of   it,   it   could   never   be   called   as   a   Money
Bill as defined in
Articles 199(1)
and
199(2)

of   the   Constitution   of   India.   Since   the
procedure   for   an   Ordinary   Bill   was   not
followed   and   the   assent   of   the   Governor   was
obtained   to   an   inchoate   and   incomplete   Bill
which had not even gone through the mandatory
requirements under the Constitution of India,
the   entire   action   was   unconstitutional   and
violative of
Article 200
of the Constitution
of India.”

356.   This Court after noticing
Articles 199
and
,

which are  pari materia  to
Articles 109
and
stated

that   proceeding   in   support   of   legislature   cannot   be

called into question on the ground that they have not

been   carried   on   in   accordance   with   the   rules   of

business.   This   Court   considered   the   issues   from

Paragraphs   34   to   38,   which   is   to   the   following

effect:­

“34. The above provisions make it clear that
the   finality   of   the   decision   of   the   Speaker
and the proceedings of the State Legislature
being   important   privilege   of   the   State
Legislature,   viz.,   freedom   of   speech,   debate
and proceedings are not to be inquired by the
Courts.   The   "proceeding   of   the   legislature"

includes   everything   said   or   done   in   either
House in the transaction of the Parliamentary
business,   which   in   the   present   case   is
enactment   of   the   Amendment   Act.   Further,

Article   212
precludes   the   courts   from
interfering   with   the   presentation   of   a   Bill
for  assent  to  the  Governor   on  the  ground   of
non­compliance with the procedure for passing
Bills,   or   from   otherwise   questioning   the
Bills  passed   by  the  House.   To  put  it   clear,
proceedings  inside   the   legislature   cannot   be
called into question on the ground that they
have   not   been   carried   on   in   accordance   with
the   Rules   of   Business.   This   is   also   evident
from
Article   194
which   speaks   about   the
powers,   privileges   of   the   Houses of   the
Legislature and of the members and committees
thereof.

35.   We   have   already   quoted
Article   199.

In
terms of
Article 199(3)
, the decision of the
Speaker of the Legislative Assembly that the
Bill   in   question   was   a   Money   Bill   is   final
and
the said decision
cannot be disputed nor
can the procedure of the State Legislature be
questioned   by   virtue   of
Article   212.

We   are
conscious of the fact that in the decision of
this   Court   in
Raja   Ram   Pal   v.   Lok   Sabha

(2007) 3 SCC 184, it has been held that the
proceedings   which   may   be   tainted   on   account
of   substantive   or   gross   irregularity   or
unconstitutionality   are   not   protected   from
judicial scrutiny.

36. Even if it is established that there was
some   infirmity   in   the   procedure   in   the
enactment   of   the   Amendment   Act,   in   terms   of
Article   255   of   the   Constitution   the   matters
of procedures do not render invalid an Act to
which assent has been given by the President
or the Governor, as the case may be.

37.
In
M.S.M.   Sharma   v.   Shree   Krishna   Sinha

AIR   1960   SC   1186   and   Mangalore   Ganesh   Beedi
Works   v.   State   of   Mysore
,   AIR   1963   SC   589,
the   Constitution   Benches   of   this   Court   held
that:

(i) the validity of an Act cannot be
challenged   on   the   ground   that   it
offends
Articles   197
to   199 and   the
procedure
laid down in

Article 202;

(ii)   Article   212   prohibits   the
validity   of   any   proceedings   in   a
Legislature   of   a   State   from   being
called in question on the ground of
any   alleged   irregularity   of
procedure; and

(iii)
Article 255
lays down that the
requirements as to recommendation and
previous sanction are to be regarded
as a matter of procedure only.

It   is  further  held  that  the  validity  of  the
proceedings inside the legislature of a State
cannot   be   called   in   question   on   the
allegation   that   the   procedure
laid   down   by

the   law   has   not   been   strictly   followed   and
that   no   Court   can   go   into   those   questions
which are within the special jurisdiction of
the   legislature   itself,   which   has   the   power
to conduct its own business.

38. Besides, the question whether a Bill is a
Money Bill or not can be raised only in the
State   Legislative   Assembly   by   a   member
thereof when the Bill is pending in the State
Legislature and before it becomes an Act. It
is brought to our notice that in the instant
case   no   such   question   was   ever   raised   by
anyone. ”

357.  This Court came to the conclusion that  question

pertaining   to   the   procedure   in   the   House   could   not

have   been   questioned   by   virtue   of
Article   212.

Another   judgment,   which   has   been   relied   by   learned

Attorney General is judgment of this Court in
Yogendra

Kumar   Jaiswal
(supra).    The   above   judgment   was

rendered by Two Judge Bench.   This Court
in
the above

case
examined   the   question   whether   introduction   of
Orissa Special Courts Act, 2006
as a Money Bill could

be   called   in   question   in   a   Court.     This   Court

considered the issue in Paragraphs 38 to 43, which are

to the following effect:­

“38.   First,   we   shall   take   up   the   issue
pertaining to the introduction of the Bill as
a   Money   bill   in   the   State   Legislature.   Mr.
Vinoo   Bhagat,   learned   Counsel   appearing   for
some of the appellants, has laid emphasis on
the   said   aspect.
Article   199
of   the
Constitution,   defines   “Money   Bills”.   For   our
present   purpose,   Clause   (3)   of
Article   199

being relevant is reproduced below:

“199.(3).   If   any   question   arises
whether   a   Bill   introduced   in   the
legislature   of   a   State   which   has   a
Legislative   Council   is   a   Money   Bill
or   not,   the   decision   of   the   Speaker
of   the   Legislative   Assembly   of   such
State thereon shall be final.

We   have   extracted   the   same   as   we   will   be
referring   to   the   authorities   as   regards
interpretation of the said clause.

39.   Placing   reliance   on
Article   199
,   the
learned Counsel would submit that the present
Act which was introduced as a money bill has
remotely   any   connection   with   the   concept   of
money bill. It is urged by him that the State
has   made   a   Sisyphean   endeavour   to   establish
some connection. The High Court to repel the
challenge   had
placed   reliance   upon

Article
which stipulates that the validity of any
proceedings   in   the   Legislature   of   a   State
shall not be called in question on the ground
of any alleged irregularity of procedure.

40. The learned Counsel for the appellants
has   drawn   inspiration   from   a   passage   from
Powers,   Privileges   and   Immunities   of   State

Legislatures.  In re, Special Reference No. 1

of 1964 AIR 1965 SC 745, wherein it has been
held   that
Article   212(1)
lays   down   that   the
validity   of any   proceedings   in   the
legislature of a State shall not be called in
question   on   the   ground   of   any   alleged
irregularity   of  procedure   and
Article   212(2)

confers immunity on the officers and members
of the legislature in whom powers are vested
by   or   under   the   Constitution   for   regulating
procedure or the conduct of business, or for
maintaining   order,   in   the   legislature   from
being   subject   to   the   jurisdiction   of   any
court   in   respect   of   the   exercise   by   him   of
those   powers.   The   Court   opined   that
Article
212(1)
seems   to   make   it   possible   for   a
citizen   to   call   in   question   in   the
appropriate court of law the validity of any
proceedings inside the Legislative Chamber if
his case is that the said proceedings suffer
not from mere irregularity of procedure, but
from an illegality. If the impugned procedure
is illegal and unconstitutional, it would be
open   to   be   scrutinised   in   a   court   of   law,
though   such   scrutiny   is   prohibited   if   the
complaint   against   the   procedure   is   not   more
than that the procedure was irregular. Thus,
the   said   authority   has   made   a distinction
between   illegality   of   procedure   and
irregularity of procedure.

41.   Our   attention   has   also   been   drawn   to
certain   paragraphs   from   the   Constitution
Bench  decision  in
Raja  Ram   Pal  v.  Lok  Sabha

(2007) 3 SCC 184.
In the said case, in paras
360 and 366, it has been held thus: (SCC pp.

347 & 350)
“360.   The   question   of   extent   of
judicial   review   of   parliamentary
matters   has   to   be   resolved   with
reference to the provision contained
in
Article 122(1)
that corresponds to

Article   212
referred   to   in
M.S.M.
Sharma   v.   Shree   Krishna   Sinha
AIR
1960 SC 1186 [Pandit Sharma (2)]. On
a   plain   reading,
Article   122(1)

prohibits   "the   validity   of   any
proceedings in Parliament” from being
'called   in   question'   in   a   court
merely on the ground of "irregularity
of   procedure".   In   other   words,   the
procedural   irregularities   cannot   be
used by the court to undo or vitiate
what happens within the four walls of
the   legislature.   But   then,
"procedural   irregularity"   stands   in
stark   contrast   to   "substantive
illegality'   which   cannot   be   found
included in the former. We are of the
considered   view   that   this   specific
provision with regard to check on the
role of the judicial organ vis­à­vis
proceedings   in   Parliament   uses
language   which   is   neither   vague   nor
ambiguous   and,   therefore,   must   be
treated as the constitutional mandate
on the subject, rendering unnecessary
search   for   an   answer   elsewhere   or
invocation   of   principles of
harmonious construction.

* * *

366.   The   touchstone   upon   which
parliamentary actions within the four
walls   of   the   legislature   were
examined was both the constitutional
as   well   as   substantive   law.   The
proceedings   which   may   be   tainted   on
account of substantive illegality or
unconstitutionality,   as   opposed   to
those   suffering   from   mere
irregularity   thus   cannot   be   held
protected   from   judicial   scrutiny   by

Article 122(1)
inasmuch as the broad
principle
laid   down   in
Bradlaugh
(1884) LR 12 QBD 271 : 53 LJQB 290 :

50   LT   620   (DC),   acknowledging
exclusive   cognizance   of   the
legislature   in   England   has   no
application   to   the   system   of
governance   provided   by   our
Constitution   wherein   no   organ   is
sovereign and each organ is amenable
to   constitutional   checks   and
controls, in which scheme of things,
this Court is entrusted with the duty
to   be   watchdog   of   and   guarantor   of
the Constitution.”

42.   In   this   regard,   we   may   profitably   refer
to   the   authority   in   Mohd.   Saeed   Siddiqui   v.

State   of   U.P.   (2014)   11   SCC   415,   wherein   a
three­Judge   Bench   while   dealing   with   such   a
challenge,   held   that
Article   212
precludes
the   courts   from   interfering   with   the
presentation   of   a   Bill   for   assent   to   the
Governor on the ground of non­compliance with
the   procedure   for   passing   Bills,   or   from
otherwise questioning the Bills passed by the
House, for proceedings inside the legislature
cannot be called into question on the ground
that   they   have   not   been   carried   on   in
accordance   with   the   Rules   of   Business.

Thereafter,   the   Court   referring   to
Article
199(3)
ruled that the decision of the Speaker
of the Legislative Assembly that the Bill in
question   was   a   Money   Bill   is   final and
the
said decision
cannot be disputed nor can the
procedure   of   the   State   Legislature   be
questioned   by   virtue   of
Article   212.

The
Court  took  note  of  the   decision  in
Raja  Ram
Pal
(supra) wherein it has been held that the
proceedings   which   may   be   tainted   on   account
of   substantive   or   gross   irregularity   or
unconstitutionality   are   not   protected   from
judicial   scrutiny.   Eventually,   the   Court
repelled the challenge.

43.
In   our   considered   opinion,   the
authorities cited by the learned Counsel for
the appellants do not render much assistance,
for  the  introduction  of  a  Bill,  as   has  been
held   in
Mohd.   Saeed   Siddiqui
(supra),   comes
within   the   concept   of   "irregularity"   and   it
does   come   with   the   realm   of substantiality.

What   has   been   held   in   the   Special   Reference
No.   1   of   1964   (supra)   has   to   be   appositely
understood.
The   factual   matrix   therein   was
totally different than the case at hand as we
find   that   the   present   controversy   is   wholly
covered   by   the   pronouncement   in
Mohd.   Saeed
Siddiqui
(supra) and hence, we unhesitatingly
hold that there is no merit in the submission
so   assiduously   urged   by   the   learned   Counsel
for the appellants.”

358.   The   consideration
in
the   above   case

indicate that this Court has merely relied on judgment

of Three Judge Bench in
Mohd. Saeed Siddiqui
(supra).

The   Court   based   its   decision   on   finality   attached   to

the decision of the Speaker in
Article 199(3)
as well

as   bar   on   challenge   of   proceeding   of   the   legislature

on   an   irregularity   procedure   as   contained   in   Article

212.   The question is, where a Speaker certify a Bill

as a Money Bill and it is introduced and passed as a

Money Bill, this only a question of procedure or not?

Article 107
contains provisions as to introduction of
passing   of   bills.
Article   107(2)
state   that   subject

to   the   provisions   of
Articles   108
and
,   a   Bill

shall not be deemed to have been passed by the Houses

of   Parliament   unless   it   has   been   agreed   to   by   both

Houses   of   Parliament.   However,   the   requirement   of

passing a Bill by both the Houses is not applicable in

case of Money Bills.
Article 110
defines as to what is

the   Money   Bill.   A   Money   Bill   is   constitutionally

defined and a Bill shall be a Money Bill only if it is

covered   by
Article   110(1).
A   Bill,   which   does   not

fulfill the conditions as enumerated in
Article 110(1)

and   it   is   certified   as   Money   Bill,   whether   the

Constitutional conditions enumerated in
Article 110(1)

shall be overridden only by certificate of Speaker?

359. We have noticed the Constitution Bench Judgment in

Kihoto Hollohan
(supra) and
Raja Ram Pal
(supra)  that

finality of the decision of the Speaker is not immuned

from   Judicial   Review.     All   Bills   are   required   to   be

passed   by   both   Houses   of   Parliament.     Exception is

given in case of Money Bills and in the case of joint

sitting   of   both   houses.     In   event,   we   accept   the
submission   of   learned   Attorney   General   that

certification by Speaker is only a matter of procedure

and cannot be questioned by virtue of
Article 122(1)
,

any   Bill,   which   does   not   fulfill   the   essential

constitutional   condition   under
Article   110
can   be

certified   as   Money   Bill   bye­passing   the   Upper   House.

There   is   a   clear   difference   between   the   subject

“irregularity   of   procedure”   and   “substantive

illegality”.     When   a   Bill   does   not   fulfill   the

essential   constitutional   condition   under
Article

110(1)
,   the   said   requirement   cannot   be   said   to   be

evaporated   only   on   certification   by   Speaker.

Accepting   the   submission   that   certification   immunes

the   challenge   on   the   ground   of   not   fulfilling   the

constitutional   condition,   Court   will   be   permitting

constitutional   provisions   to   be   ignored   and   bye­

passed.    We,   thus,   are   of   the   view   that   decision   of

Speaker certifying the Bill as Money Bill is not only

a matter of procedure and in event, any illegality has

occurred   in   the   decision   and   the   decision   is   clearly

in   breach   of   the   constitutional   provisions,   the
decision   is   subject   to   Judicial   Review.

We   are,

therefore,   of   the   view   that   the   Three   Judge   Bench

Judgment   of   this   Court   in
Mohd.   Saeed   Siddiqui

(supra)  and Two Judge Bench judgment of this Court in

Yogendra   Kumar   Jaiswal
(supra)  does   not   lay   down   the

correct law.   We, thus, conclude that the decision of

the Speaker certifying the Aadhaar Bill as Money Bill

is not immuned from Judicial Review.

360.     We   having   held   that   the   decision   of   Speaker

certifying the Aadhaar Bill as a Money Bill is open to

Judicial   Review.     We   now   proceed   to   examine   as   to

whether Speaker's decision certifying the Aadhaar Bill

as   Money   Bill   contravenes   any   of   the   Constitutional

provisions, i.e., Whether the decision is vitiated by

any   Constitutional   Illegality?     For   determining   the

main issue, which need to be answered is as to whether

Aadhaar Bill is covered by any of Clauses (a) to (f)

of
Article 110(1).
That Clause(g) shall be applicable

only   when   any   of   Clauses   (a)   to   (f)   are   attracted.

Clause   (g)   which   contemplate   that   any   matter

incidental   to   any   of   the   matters   specified   in   sub­
clauses   (a)   to   (f),   can   be   a   provision   in   a   Bill

presupposes   that   main   provisions   have   to   fall   in   any

of the Clauses (a) to (f).   The heart of the Aadhaar

Act is
Section 7
, which is to the following effect:­

“7. Proof   of   Aadhaar   number   necessary   for
receipt   of   certain   subsidies,   benefits   and
services, etc.­ The Central Government or, as
the   case   may   be,   the   State   Government   may,
for   the   purpose   of   establishing   identity   of
an individual as a condition for receipt of a
subsidy,   benefit   or   service   for   which   the
expenditure is incurred from, or the receipt
therefrom   forms   part   of,   the   Consolidated
Fund   of   India,   require   that   such   individual
undergo   authentication,   or   furnish   proof   of
possession   of   Aadhaar   number   or   in   the   case
of   an   individual   to   whom   no   Aadhaar   number
has   been   assigned,   such   individual   makes   an
application for enrolment:

Provided that if an Aadhaar number is not
assigned   to   an   individual,   the   individual
shall   be   offered   alternate   and   viable   means
of   identification   for   delivery   of   the
subsidy, benefit or service.”

361.  A condition for receipt of a subsidy, benefit or

service for which the expenditure is incurred from, or

the receipt therefrom forms part of, the Consolidated

Fund   of   India,   has   been   provided   by
Section   7
,   i.e.

undergoing of an individual to an authentication.  The

Preamble of the Act as well as objects and reasons as
noticed   above   also   indicate   that   the   Act   has   been

enacted   to   provide   for,   as   a   good   governance,

efficient,   transparent,   and   targeted   delivery   of

subsidies, benefits and services, the expenditure for

which is incurred from the Consolidated Fund of India,

to individuals residing in India through assigning of

unique   identity   numbers   to   such   individuals   and   for

matters   connected   therewith   or   incidental   thereto.

Thus, the theme of the Act or main purpose and object

of the Act is to bring in place efficient, transparent

and   targeted   deliveries   of   subsidies,   benefits   and

services,   which   expenditure   is   out   from   the

Consolidated   Fund   of   India.     Thus,   the   above

provisions   of   the   Act   is   clearly   covered   by
Article

110(1)(c)
and (e).

362.   Shri   P.   Chidambaram,   learned   counsel   for

petitioners has laid much emphasis on the word “only“

as occurring in
Article 110(1).
The word “only” used

in
Article   110(1)
has   purpose   and   meaning.     The

legislative   intendment   was   that   main   and   substantive

provisions   should   be   only   any   or   all   of   the   clauses
from (a) to (f).   In event, the main and substantive

provision of the Act are not covered by Clauses (a) to

(f), the said Bill cannot be said to be a Money Bill.

It   will   not   be   out   of   place   to   mention   here   that   in

Constituent   Assembly,   an   amendment   was   moved   for

deletion   of   word   “only”   on   20.05.1949,   Hon'ble   Shri

Ghanshyam   Singh   Gupta   moved   the   amendment   in   Draft

Article 90.
It is useful to extract the above debate,

which is to the following effect:­

The   Honourable   Shri   Ghanshyam   Singh   Gupta
(C.P. & Berar: General): Sir, I beg to move:

"That  in   clause  (1)  of
article  90
,   the  word
`only' be deleted."

This article is a prototype of
Section 37
of
the Government of India Act which says that a
Bill   or   amendment   providing   for   imposing   or
increasing   a   tax   or   borrowing   money,   etc.
shall   not   be   introduced   or   moved   except   on
the   recommendation   of   the   Governor­General.
This means that the whole Bill need not be a
money Bill: it may contain other provisions,
but if there is any provision about taxation
or   borrowing,   etc.   It   will   come   under   this

Section37
,   and   the   recommendation   of   the
Governor­General is necessary. Now
article 90

says   that   a   Bill   shall   be   deemed   to   be   a
money   Bill   if   it   contains   only   provisions
dealing   with   the   imposition,   regulation,
etc.,  of   any  tax   or  the  borrowing  of   money,
etc.   This   can   mean   that   if   there   is   a   Bill
which   has   other   provisions   and   also   a
provision   about   taxation   or   borrowing   etc.,
it will not become a money Bill. If that is
the intention I have nothing to say; but that
if that is not the intention I must say the
word "only" is dangerous, because if the Bill
does   all   these   things   and   at   the   same   time
does   something   else   also   it   will   not   be   a
money Bill. I do not know what the intention
of the Drafting Committee is but I think this
aspect   of   the   article   should   be   borne   in
mind.”

363.   After   discussion,   Mr.   Naziruddin   Ahmad   also

suggested   that   the   position   of   the   word   “only”   in

connection with Amendment No.1669 should be specially

considered.     It   is   a   word   which   is   absolutely

misplaced.     On   that   day,   the   consideration   was

deferred   and   again   in   the   debate   on   06.06.1949,

Constituent   Assembly   took   up   the   discussion.     The

President   of   the   Constituent   Assembly   placed   the

amendment for vote on 08.06.1949, which amendment was

negativated.     Thus,   use   of   word   “only”   in
Article

110(1)
has   its   purpose,   which   is   a   clear   restriction

for a Bill to be certified as a Money Bill.

364.   Other   provisions   of   the   Act   can   be   said   to   be

incidental   to   the   above   matter.     The   architecture   of
the   Aadhaar   Act   veer   round   the   Government's

constitutional   obligation   to   provide   for   subsidies,

benefits   and   services   to   the   individuals,   who   are

entitled   for   such   subsidies,   benefits   and   services.

Section   24
contemplates   the   appropriation   made   by

Parliament by law for grant of sums of money for the

purposes   of   Aadhaar   Act.     The   disbursement   of

subsidies, benefits and services from the Consolidated

Fund of India is in substance, the main object of the

Act for which Aadhaar architecture has been envisaged

and   other provisions   are   only   to   give   effect   to   the

above main theme of the Act.   Other provisions of the

Act are only incidental provisions to main provision.

Section 57
on which much attack has been made by the

learned counsel for the petitioners that it cannot be

covered   by   any   of   the   provisions   from   (a)   to   (f)   of

Article 110(!).
Suffice it to say that
Section 57
is

a provision which clarifies that nothing contained in

Aadhaar   Act   shall   prevent   the   use   of   Aadhaar   number

for establishing the identity of an individual for any

purpose, whether by the State or any body corporate or
person,   pursuant   to   any   law,   for   the   time   being   in

force,   or   any   contract   to   this   effect.     The

applicability   of   the   provision   of
Section   57
comes

into   play   when   Aadhaar   Number   is   allocated   to   an

individual after completing the process under the Act.

Section   57
is   also   a   incidental   provision   covered   by

sub­clause(g)     of
Article   110(1).

Section   57
is   a

limitation imposed under the Act on the use of Aadhaar

Number  by State or any  body corporate or  any private

party.     We,   thus,   are   of   the   view   that   Aadhaar   Bill

has   rightly   been   certified   as   the   Money   Bill   by   the

Speaker,   which   decision   does   not   violate   any

constitutional provision, hence does not call for any

interference   in   this   proceeding.     Issue   No.   16   is

answered in the following manner:­

Ans.16:­  Aadhaar Act has been rightly passed as Money

Bill.  The decision of Speaker certifying the

Aadhaar   Bill,   2016   as   Money   Bill   is   not

immuned from Judicial Review.
Issue No.17 Whether
Section   139
­AA   of   the   Income   Tax
Act,   1961   is   unconstitutional   in   view   of
the Privacy judgment in
Puttaswamy
case?

365.
Section 139
­AA was challenged by a bunch of writ

petitions,   which   were   decided   by   this   Court   in
Binoy

Viswam Vs. Union of India and Others
, (2017) 7 SCC 59.

The   writ   petitions   were   disposed   of   upholding   the

vires   of
Section   139
­AA.     Para   136   of   the   judgment

contains operative portion, which is to the following

effect:­

“136.  Subject   to   the   aforesaid,   these   writ
petitions   are   disposed   of   in   the   following
manner:

136.1  We   hold   that   the   Parliament   was   fully
competent to enact
Section 139
­AA of the Act
and   its   authority   to   make   this   law   was   not
diluted by the orders of this Court.

136.2.    We  do  not  find   any  conflict  between
the provisions of the Aadhaar Act and
Section
139AA
of the Income Tax Act inasmuch as when
interpreted   harmoniously,   they   operate   in
distinct fields.

136.3.
Section   139
­AA   of   the   Act   is   not
discriminatory nor it offends equality Clause
enshrined in
Article 14
of the Constitution.

136.4.
Section   139
­AA   is   also   not   violative
of
Article   19(1)(g)
of   the   Constitution
insofar   as   it   mandates   giving   of   Aadhaar
enrollment number for applying for PAN cards,
in the income tax returns or notified Aadhaar
enrollment   number   to   the   designated
authorities.   Further,   the   proviso   to   Sub­
section   (2)   thereof   has   to   be   read   down   to
mean   that   it   would   operate   only
prospectively.

136.5    The   validity   of   the   provision   upheld
in the aforesaid manner is subject to passing
the muster of
Article 21
of the Constitution,
which   is   the   issue   before   the   Constitution
Bench   in   Writ   Petition   (Civil)   No.   494   of
2012 and other connected matters. Till then,
there   shall   remain   a   partial   stay   on   the
operation   of   the   proviso   to   Sub­section   (2)
of
Section   139
­AA   of   the   Act,   as   described
above.  No cost.”

366.   As   per   the   above   judgment,   the   validity   of   the

provisions   of   Section­139AA   was   upheld   subject   to

passing the muster of
Article 21
of the Constitution,

which   was   the   issue   pending   before   the   Constitution

Bench in Writ Petition (C) No. 494 of 2012 and other

connected matters.  The Constitution Bench Judgment in

Puttaswamy  was   delivered   on   24.08.2017.   Right   of

Privacy   has   been   held   to   be   fundamental   right,   any

restriction on such fundamental right has been held to

be valid when it passes the muster of three­fold test

as   laid   down   there.     In   the   lead   judgment   of   Dr.
Justice D.Y. Chandrachud, three­fold test are:­

(a)  The existence of law;

(b)  A legitimate State interest and

(c) such   law   should   pass   the   test   of

proportionality.

367.   Dr.   Justice   Chandrachud   has   delivered   the

judgment   for   himself   and   three   other   Hon'ble   Judges,

Justice Sanjay Kishan Kaul in paragraph 639 has upheld

the   test   of   proportionality.     As   a   result,   at­least

five   out   of   nine   Judges   requires   the   proportionality

test to be  applied.
In addition to tests propounded

by   a   Constitution   Bench   in
Puttaswamy
case,   an

additional   test   as   propounded   by   a   Five   Judges

Constitution   Bench   of   this   Court   in
Shayara   Bano   Vs.

Union of  India
, (2017) 9 SCC  1,  Justice R.F. Nariman

has   laid   down   a   test   of   “manifest   arbitrariness”.

Reading   the   Nine   Judge   Bench   decision   in
Puttaswamy

case   and   Five   Judge   Bench   decision   in  Shayara   Bano's

case,   the   Petitioner   can   succeed   to   the   challenge   to

Section   139
­AA   only   if   they   successfully   demonstrate

the said provision to be violative of Right to Privacy
on the basis of the following tests:­

(i) Absence of law;

(ii) Absence of Legitimate State Interest;

(iii) The   provision   being   hit   by   lack   of
proportionality.
(iv) The   provision   being   manifestly   arbitrary,
which   can   be   traced   to
Article   14.
[The

test   to   determine   “manifest   arbitrariness”
is   to   decide   whether   the   enactment   is
drastically   unreasonable   and   /   or
capricious,   irrational   or   without   adequate
determining principle”]

368.  The learned Attorney General relies on following

interest,   which   according   to   him   are   safeguarded   by

Section   139
­AA   to   satisfy   the   legitimate   State

interest:­

a. To   prevent   income   tax   evasion   by
requiring,   through   an   amendment   to   the

Income   Tax   Act
,   that   the   Aadhaar   number
be linked with the PAN; and
b. Prevention, accumulation, circulation and
use   of   black   money   and   money   laundering
by   imposing   a   requirement by   law   for
linking   Aadhaar   for   opening   bank
accounts;

c. To prevent terrorism and protect national
security   and   prevention   of   crime   by
requiring   that   Aadhaar   number   be   linked
to SIM cards for mobile phones.

369.   Binoy Viswam  has examined
Section 139
­AA on the

Principle of Doctrine of Proportionality in Paragraphs

123 to 125:­

“123.  Keeping   in   view   the   aforesaid
parameters and principles in mind, we proceed
to   discuss   as   to   whether   the   “restrictions”
which would result in terms of the proviso to
sub­section (2) of
Section 139
­AA of the Act
are reasonable or not.

124.  Let   us   revisit   the   objectives   of
Aadhaar, and in the process, that of
Section
­AA of the Act in particular.

125.  By   making   use   of   the   technology,   a
method   is  sought  to  be   devised,  in   the  form
of   Aadhaar,   whereby   identity   of   a   person   is
ascertained   in   a   flawless   manner   without
giving any leeway to any individual to resort
to   dubious   practices   of   showing   multiple
identities   or   fictitious   identities.   That   is
why   it   is   given   the   nomenclature   “unique
identity”. It is aimed at securing advantages
on   different   levels   some   of   which   are
described, in brief, below:

125.1.  In   the   first   instance,   as   a   welfare
and democratic State, it becomes the duty of
any   responsible   Government   to   come   out   with
welfare   schemes   for   the   upliftment   of
poverty­stricken and marginalised sections of
the society. This is even the ethos of Indian
Constitution which casts a duty on the State,
in the form of “directive principles of State
policy”, to take adequate and effective steps
for   betterment   of   such   underprivileged
classes.   State   is   bound   to   take   adequate
measures   to   provide   education,   health   care,
employment   and   even   cultural   opportunities
and   social   standing   to   these   deprived   and
underprivileged   classes.   It   is   not   that
Government   has   not   taken   steps   in   this
direction   from   time   to   time.   At   the   same
time, however, harsh reality is that benefits
of   these   schemes   have   not   reached   those
persons for whom that are actually meant.

125.1.1.  India   has   achieved   significant
economic   growth   since   Independence.   In
particular,   rapid   economic   growth   has   been
achieved   in   the   last   25   years,   after   the
country  adopted  the  policy   of   liberalisation
and   entered   the   era   of,   what   is   known   as,
globalisation.   Economic   growth   in   the   last
decade   has   been   phenomenal   and   for   many
years,   the   Indian   economy   grew   at   highest
rate   in   the   world.   At   the   same   time,   it   is
also   a   fact   that   in   spite   of   significant
political   and   economic   success   which   has
proved   to   be   sound   and   sustainable,   the
benefits thereof have not percolated down to
the   poor   and   the   poorest.   In   fact,   such
benefits   are   reaped   primarily   by   rich   and
upper middle classes, resulting into widening
the gap between the rich and the poor.

125.1.2.  Jean   Dreze   and   Amartya   Sen   pithily
narrate the position as under:

“Since   India’s   recent   record   of   fast
economic   growth   is   often   celebrated,
with   good   reason,   it   is   extremely
important to point to the fact that the
societal   reach   of   economic   progress   in
India   has   been   remarkably   limited.   It
is   not   only   that   the   income
distribution   has   been   getting   more
unequal   in   recent   years   (a
characteristic   that   India   shares   with
China), but also that the rapid rise in
real   wages   in   China   from   which   the
working   classes   have   benefited   greatly
is   not   matched   at   all   by   India’s
relatively stagnant real wages. No less
importantly,   the   public   revenue
generated   by   rapid   economic   growth
has not been used to expand the social
and   physical   infrastructure   in   a
determined   and   well­planned   way   (in
this   India   is   left   far   behind   by
China).  There is  also a  continued lack
of   essential   social   services   (from
schooling   and   health   care   to   the
provision   of   safe   water   and   drainage)
for   a   huge   part   of   the   population.   As
we   will   presently   discuss,   while   India
has   been   overtaking   other   countries   in
the progress of its real income, it has
been   overtaken   in   terms   of   social
indicators   by   many   of   these   countries,
even   within   the   region   of   South   Asia
itself   (we   go   into   this   question   more
fully   in   Chapter   3,   ‘India   in
Comparative Perspective’).

To   point   to   just   one   contrast,   even
though   India   has   significantly   caught
up   with   China   in   terms   of   GDP   growth,
its  progress  has  been very  much  slower
than   China’s   in   indicators   such   as
longevity,   literacy,   child
undernourishment   and   maternal
mortality.   In   South   Asia   itself,   the
much   poorer   economy   of   Bangladesh   has
caught   up   with   and   overtaken   India   in
terms   of   many   social   indicators
(including   life   expectancy,
immunisation   of   children,   infant
mortality,   child   undernourishment   and
girls’   schooling).   Even   Nepal   has   been
catching up, to the extent that it now
has   many   social   indicators   similar   to
India’s, in spite of its per capita GDP
being   just   about   one   third.   Whereas
twenty   years   ago   India   generally   had
the second best social indicators among
the   six   South   Asian   countries   (India,
Pakistan,   Bangladesh,   Sri   Lanka,   Nepal
and  Bhutan),  it  now  looks second  worst
(ahead   only   of   problem­ridden
Pakistan).   India   has   been   climbing   up
the   ladder   of   per   capita   income   while
slipping   down   the   slope   of   social
indicators.”

125.1.3.  It is in this context that not only
sustainable development is needed which takes
care   of   integrating   growth   and   development,
thereby ensuring that the benefit of economic
growth   is   reaped   by   every   citizen   of   this
country,   it   also   becomes   the   duty   of   the
Government   in a   welfare   State   to   come   out
with   various   welfare   schemes   which   not   only
take care of immediate needs of the deprived
class   but   also   ensure   that   adequate
opportunities are provided to such persons to
enable   them   to   make   their   lives   better,
economically   as   well   as   socially.   As
mentioned above, various welfare schemes are,
in   fact,   devised   and   floated   from   time   to
time   by   the   Government,   keeping   aside
substantial   amount   of   money   earmarked   for
spending   on   socially   and   economically
backward   classes.   However,   for   various
reasons   including   corruption,   actual   benefit
does   not   reach   those   who   are   supposed   to
receive   such   benefits.   One   of   the   main
reasons is failure to identify these persons
for lack of means by which identity could be
established   of   such   genuine   needy   class.

Resultantly,   lots   of   ghosts   and   duplicate
beneficiaries   are   able   to   take   undue   and
impermissible   benefits.   A   former   Prime
Minister   of   this   country   has   gone   on   record
to   say   that   out   of   one   rupee   spent   by   the
Government   for   welfare   of   the   downtrodden,
only 15 paisa thereof actually reaches those
persons   for   whom   it   is   meant.   It   cannot   be
doubted   that   with   UID/Aadhaar   much   of   the
malaise in this field can be taken care of.

125.2.  Menace   of   corruption and   black   money
has   reached   alarming   proportion   in   this
country.   It   is   eating   into   the   economic
progress   which   the   country   is   otherwise
achieving. It is not necessary to go into the
various reasons for this menace. However, it
would   be   pertinent   to   comment   that   even   as
per   the   observations   of   the   Special
Investigation   Team   (SIT)   on   black   money
headed   by   Justice   M.B.   Shah,   one   of   the
reasons   is   that   persons   have   the   option   to
quote their PAN or UID or passport number or
driving   licence   or   any   other   proof   of
identity   while   entering   into
financial/business   transactions.   Because   of
this   multiple   methods   of   giving   proofs   of
identity,   there   is   no   mechanism/system   at
present   to   collect   the   data   available   with
each   of   the   independent   proofs   of   ID.   For
this   reason,   even   SIT   suggested   that   these
databases   be   interconnected.   To   the   same
effect is the recommendation of the Committee
headed   by   Chairman,   CBDT   on   measures   to
tackle black money in India and abroad which
also   discusses   the   problem   of   money
laundering   being   done   to   evade   taxes   under
the   garb   of   shell   companies   by   the   persons
who   hold   multiple   bogus   PAN   numbers   under
different names or variations of their names.
That can be possible if one uniform proof of
identity, namely, UID is adopted. It may go a
long   way   to   check   and   minimise   the   said
malaise.

125.3.  Thirdly,   Aadhaar   or   UID,   which   has
come   to   be   known   as   the   most   advanced   and
sophisticated   infrastructure,   may   facilitate
law­enforcement   agencies   to   take   care   of
problem   of   terrorism   to   some   extent   and   may
also   be   helpful   in   checking   the   crime   and
also   help   investigating  agencies   in  cracking
the crimes. No doubt, going by the aforesaid,
and   may   be   some   other   similarly   valid
considerations,   it   is   the   intention   of   the
Government to give fillip to Aadhaar movement
and   encourage   the   people   of   this   country   to
enrol themselves under the Aadhaar Scheme.”

370.  In Paragraphs 122 to 125 of Binoy Viswam, it has

also   been observed   that   the   measures   taken   may   go   a

long   way   to   check   and minimise   the   malaise   of   black

money.

371.   Dr. Justice  D.Y. Chandrachud in
Puttaswamy
case

in Paragraph 311 has stated:­

“311.  …......Prevention and investigation of
crime and protection of the revenue are among
the   legitimate   aims   of   the   State.     Digital
platforms   are   a   vital   tool   of   ensuring   good
governance   in   a   social   welfare   State.

Information   technology   –   legitimately
deployed is a powerful enabler in the spread
of innovation and knowledge.”
372.
In
Puttaswamy
case,   Justice   Sanjay   Kishan   Kaul

has   noted   the   European   Union   General   Data   Protection

Regulation and observed that restrictions on the right

to   privacy   may   be   justifiable   on   the   ground   of

regulation   of   taxes   and   financial   institutions.       In

Paragraph 640, Justice Kaul has held:­

“640.  It   would   be   useful   to   turn   to   the
European   Union   Regulation   of   2016.

Restrictions   of   the   right   to   privacy   may   be
justifiable   in   the   following   circumstances
subject to the principle of proportionality:

(a)  Other   fundamental   rights:   The
right to  privacy  must be  considered  in
relation to its function in society and
be   balanced   against   other   fundamental
rights.

(b)   Legitimate   national   security
interest.

(c)   Public   interest   including
scientific   or   historical   research
purposes or statistical purposes.

(d)  Criminal   offences:   The   need   of
the   competent   authorities   for
prevention   investigation,   prosecution
of   criminal   offences   including
safeguards   against   threat   to   public
security;

(e)  The   unidentifiable   data:   The
information   does   not   relate   to
identified   or   identifiable   natural
person   but   remains   anonymous.   The
European   Union   Regulation   of   2016
refers   to   “pseudonymisation”   which
means   the   processing   of   personal   data
in such a manner that the personal data
can   no   longer   be   attributed   to   a
specific   data   subject   without   the   use
of   additional   information,   provided
that   such   additional   information   is
kept   separately   and   is   subject   to
technical   and   organisational   measures
to   ensure   that   the   personal   data   are
not   attributed   to   an   identified   or
identifiable natural person;

(f)  The   tax,   etc.:   The   regulatory
framework   of   tax   and   working   of
financial   institutions,   markets   may
require   disclosure   of   private
information.   But   then   this   would   not
entitle   the   disclosure   of   the
information to all and sundry and there
should   be   data   protection   rules
according   to   the   objectives   of   the
processing.   There   may   however,   be
processing   which   is   compatible   for   the
purposes   for   which   it   is   initially
collected.”

373.
Section   139
­AA   thus   clearly   enacted   to   fulfill

the   legitimate   State   interest.
Section   139
­A   which

came   into   effect   w.e.f.   01.04.1989   provide   for

Permanent Account Number (PAN) and the provision also

provided   that   statutory   mandatory   provisions   as   to
when   “every   person”   shall   quote   such   number   (PAN

number) for various purposes as enumerated in
Section

139A
.   Introduction of
Section 139
­AA is an extension

and implication of
Section 139A
.   The introduction of

Section   139
­AA   was   for   the   purpose   of   eliminating

duplicate   PANs   from   the   system   with   the   help   of   a

robust technology solution.

374.   The   new
Section   139
­AA   in   the   Income   Tax   Act

seeks   to   remove   bogus   PAN   cards   by   linking   with

Aadhaar,   expose   shell   companies   and   thereby   curb   the

menace   of   black   money,   money   laundering   and   tax

evasion.   The fact that the tax base of India is very

narrow   and   that   we   are   a   largely   tax   non­compliant

society is evident from some of the startling figures

in the budget speech of the Finance Minister. Linking

of   PAN   with   Aadhaar   will   at   least   ensure   that

duplicate   and   fake   PAN   cards   which   are   used   for   the

purpose of tax  evasion will be eliminated and is one

of   the   many   fiscal   measures   to   eliminate   black   money

from the system.
375.   The  Binoy Viswam  has referred to other relevant

rationals   for   enactment   of
Section   139
­AA.
Section
­AA   also   cannot   be   said   to   be   disproportionate.

The section has been enacted to achieve the legitimate

State   aim.
Section   139
­AA   is   a   law   framed   by

Parliament, which require linking of the Aadhaar with

PAN.     The   means   which   are   sought   to be   achieved   by

such   enactment   cannot   be   said   to   be   disproportionate

in   any   manner.   It   has   been   further   submitted   that

Section   139
­AA   unfairly   attracts   only   individual

assessees and not other tax paying assessees, who may

also   be   involved   in   financial   frauds.     The   above

submission need not detain us since Aadhaar number can

be obtained by the individuals and not by the entities

hence   Section­139AA   can   only   apply   to   individuals.

In   any   event,   the   legislature   cannot   be   expected   to

address   all   issues   relating   to   a   particular   evil   at

one   go.
Section   139
­AA   is   a   required   first   step   to

weed   out   fake   PANs   for   individuals;   it   is   perfectly

acceptable   for   the   legislature   to   weed   out   fake   PANs

for other tax­paying entities at a later stage.   Such
a   view   is   also   endorsed   in   judicial   decisions.
In

Namit   Sharma   Vs.   Union   of   India
,   (2013)   1   SCC   745

(per Swatanter Kumar, J.) this Court observed:­

“43. The rule of equality or equal protection
does   not   require   that   a   State   must   choose
between   attacking   every   aspect   of   a   problem
or   not   attacking   the   problem   at   all,   and
particularly   with   respect   to   social   welfare
programme.   So  long   as  the  line  drawn  by  the
State   is   rationally   supportable,   the   courts
will   not   interpose   their   judgment   as   to   the
appropriate stopping point.…........”

376.  Thus, the legislature is within its remit to only

target   individual   assessees   with
Section   139
­AA,   and

not every other tax­paying entity.   The law does not

have   to   provide   for   complete   coverage of   tax­payers

who   may   be   indulging   in   financial   fraud   but   may

envisage 'degrees of harm' and act on that basis.   In

this context, the Aadhaar number is being mandated for

all   individual   assessees.     This   is   applicable   to

natural   persons   as   well   as   persons   who   together

constitute   legal   persons   (e.g.   Partners   in   a

partnership,   members   of   a   company   etc.)   and   hence

provides   significant   coverage   to   weed   out   duplicate

PANs   and   hence   reduce   the   incidence   of   financial   and
tax   frauds   through   these   means.     Aadhaar's   inclusion

into   PAN   is   meant   to   curb   tax   evasion,   sham

transactions,   entry   providers   which   are   rampantly

carried   out   on   account   of   bogus   PANs.     Aadhaar's

unique   de­duplication   based   on   biometric

identification   has   been   hailed   as   the   most

sophisticated system by the World Bank.   Inclusion of

Aadhaar   into   PAN   eliminates   the   inequality   between

honest   tax   payers   and   non­compliant,   dishonest   ones

who   get   away   without   paying   taxes.     Inclusion   of

Aadhaar   into   PAN   promotes   rather   than   negates

equality.  It bolsters equality and is consistent with

Article 14.

377.   In result,
Section 139
­AA is fully compliant of

three­fold   test   as
laid   down   in
Puttaswamy's  case.

Section 139
­AA, thus does not breach fundamental Right

of Privacy of an individual and
Section 139
­AA cannot

be struck down on that ground.

Ans.17:­
Section   139
­AA   does   not   breach   fundamental

Right   of   Privacy   as   per   Privacy   Judgment   in

Puttaswamy
case.
Issue No. 18 Whether   Aadhaar   Act   violates   the
Interim   Orders   passed   by   this   Court
in   Writ   Petition   (C)   No.   494   of
2012?

378.     The   petitioners   submits   that   this   Court   has

passed various Interim Orders in Writ Petition (C) No.

494   of   2012   from   23.09.2013   to   15.10.2015.     On

23.09.2013, this Court directed “In the meanwhile, no

person   should   suffer   not   getting   the   Aadhaar   card

inspite of the  fact that some authority had issued  a

circular   making   it   mandatory   and   when   any   person

applies to get the Aadhaar Card voluntarily, it may be

checked   whether   that   person   is   entitled   for   it   under

the   law   and   it   should   not   be   given   to   any   illegal

immigrant”.

379.   On   11.08.2015,   this   Court   issued   following

order:­

“Having considered the matter, we are of the
view   that   the   balance   of   interest   would   be
best   served,   till   the   matter   is   finally
decided   by   a   larger   Bench   if   the   Union   of
India   or   the   UIDA   proceed   in   the   following
manner:­
1.   The   Union   of   India   shall   give   wide
publicity   in   the   electronic   and   print   media
including   radio  and  television   networks  that
it   is  not  mandatory  for  a  citizen  to   obtain
an Aadhaar card;

2. The production of an Aadhaar card will not
be   condition   for   obtaining   any   benefits
otherwise due to a citizen;

3.   The   Unique   Identification   Number   or   the
Aadhaar   card   will   not   be   used   by   the
respondents   for   any   purpose   other   than   the
PDS Scheme and in particular for the purpose
of   distribution   of   foodgrains,   etc.   and
cooking   fuel,   such   as   kerosene.   The   Aadhaar
card may also be used for the purpose of the
LPG Distribution Scheme;

4.   The   information   about   an   individual
obtained   by   the   Unique   Identification
Authority   of   India   while   issuing   an   Aadhaar
card shall not be used for any other purpose,
save as above, except as may be directed by a
Court   for   the   purpose   of   criminal
investigation.”

By   subsequent   order   of   15.10.2015,   some   more

Schemes were included.

380.   It is submitted that the Central Government and

the   State   Government   issued   various   notifications

numbering   139,   requiring   Aadhaar   authentication   for

various benefits, subsidies and schemes.  The issuance

of   such   orders   is   in   breach   of   above   Interim   Orders

passed by this Court.
381.
In
Binoy Viswam
(supra) an argument was advanced

that enactment of
Section 139
­AA was in breach of the

Interim Order passed in Writ Petition (C)   No. 494 of

2012.  The said argument was considered and in Para 99

it was held as follows:

“99.  Main   emphasis,   however,   is   on   the   plea
that   Parliament   or   any   State   Legislature
cannot   pass   a   law   that   overrules   a   judgment
thereby   nullifying
the   said   decision
,   that
too   without   removing   the   basis   of   the
decision.   This   argument   appears   to   be
attractive inasmuch as few orders are passed
by this Court in pending writ petitions which
are   to   the   effect   that   the   enrolment   of
Aadhaar would be voluntary. However, it needs
to be kept in mind that the orders have been
passed in the petitions where Aadhaar Scheme
floated   as   an   executive/administrative
measure has been challenged. In those cases,
the   said   orders   are   not   passed   in   a   case
where   the   Court   was   dealing   with   a   statute
passed   by   Parliament.   Further,   these   are
interim   orders   as   the   Court   was   of   the
opinion   that   till   the   matter   is   decided
finally   in   the   context   of   right   to   privacy
issue, the implementation of the said Aadhaar
Scheme   would   remain   voluntary.   In   fact,   the
main issue as to whether Aadhaar card scheme
whereby   biometric   data   of   an   individual   is
collected   violates   right   to   privacy   and,
therefore, is offensive of
Article 21
of the
Constitution or not is yet to be decided. In
the   process,   the   Constitution   Bench   is   also
called upon to decide as to whether right to
privacy   is   a   part   of
Article   21
of   the
Constitution   at   all.   Therefore,   no   final
decision has been taken. In a situation like
this,   it   cannot   be   said   that   Parliament   is
precluded from or it is rendered incompetent
to pass such a law. That apart, the argument
of the petitioners is that the basis on which
the   aforesaid   orders   are   passed   has   to   be
removed, which is not done. According to the
petitioners, it could be done only by making
the   Aadhaar   Act   compulsory.   It   is   difficult
to   accept   this   contention   for   two   reasons:

first,   when   the   orders   passed   by   this   Court
which are relied upon by the petitioners were
passed   when   the   Aadhaar   Act   was not   even
enacted.   Secondly,   as   already   discussed   in
detail   above, the   Aadhaar   Act   and   the   law
contained in
Section 139
­AA of the Income Tax
Act   deal   with   two   different   situations   and
operate in different fields. This argument of
legislative   incompetence   also,   therefore,
fails.”

382.   We have noticed that the Writ Petition (C)   No.

494 of 2012 was filed at the time when Aadhaar Scheme

was   being   implemented   on   the   basis   of   executive's

instructions   dated   28.01.2009.     In   the   Writ   Petition

filed   prior   to   enactment   of   Act,   2016,   challenge   to

Aadhaar Scheme was founded on following:­

i. The   requirement   of   making   Aadhaar
mandatory   for availing   benefits   under
various social service schemes by way of
an executive order and
ii. Concerns   regarding   the   right   to   privacy
of   the   individuals,   which   emanated   on
account   of   collection   of   biometric   data
under   the   Aadhaar   scheme,   which   is
without any legislative backing.

383.
Aadhaar   Act,   2016
gives   legislative   backing   to

the   Aadhaar   Scheme.
The   Act
contains   specific

provisions   prohibiting   disclosure   of   core   biometric

information   collected   in   Aadhaar   enrolment.     It   is

submitted that Schemes notified under
Section 7
of the

Act   were   on   the   strength   of   Aadhaar   enactment   and

cannot be said to be a violation of interim orders of

this   Court.   The   submission   that   interim   orders

directed the Aadhaar to be voluntary, it is submitted

by   the   respondent   that   consent   was   obtained   from

individuals, who came for enrolment under the Aadhaar

Act. It is submitted that all those, who were enrolled

under   the   Statutory   Scheme   dated   28.01.2009,   the

consent   was   given   by   the   individuals   in   verifying

their informations.

384.     We,   thus,   conclude   that   Aadhaar   Act   cannot   be

struck down on the ground that it is in violation of

interim   orders   passed   by   this   Court   in   Writ   Petition

(C) No. 494 of 2012. Issue No. 18 is answered in
following manner:­

Ans.18:­   The   Aadhaar   Act   does   not   violate   the

interim   orders   passed   in   Writ   Petition

(C)   No.   494   of   2012   and   other   Writ

Petitions.

385.   I   had   gone   through   the   erudite   and   scholarly

opinion of Justice A.K.Sikri (which opinion is on his

own behalf and on behalf of Chief Justice and Justice

A.M.Khanwilkar)   with   which   opinion   I   broadly   agree.

Rule   9   as   amended   by   PMLA   (Second   Amendment)   Rules,

2017 has been struck down by my esteemed brother which

provision   has   been   upheld   by   me.   My   reasons   and

conclusions are on  the same line  except few where my

conclusions   are   not   in   conformity   with   the   majority

opinion.

CONCLUSIONS:­

386.  In view of above discussions, we arrive at following

conclusions:­

(1) The   requirement   under   Aadhaar   Act   to give
one's   demographic   and   biometric   information
does     not   violate   fundamental   right   of
privacy.

(2) The   provisions   of   Aadhaar   Act   requiring
demographic   and   biometric   information   from   a
resident   for   Aadhaar   Number   pass   three­fold
test as
laid down in

Puttaswamy
(supra) case,
hence cannot be said to be unconstitutional.

(3) Collection   of   data,   its   storage   and   use   does
not violate fundamental Right of Privacy.

(4)   Aadhaar Act does not create an architecture for
pervasive surveillance.

(5) Aadhaar Act and Regulations provides protection
and   safety   of   the   data   received   from
individuals.

(6)
Section 7
of the Aadhaar is constitutional. The
provision does not deserve to be struck down on
account   of   denial   in   some   cases   of   right   to
claim on account of failure of authentication.

(7) The State while enlivening right to food, right
to   shelter   etc.   envisaged   under
Article   21

cannot   encroach   upon   the   right   of   privacy   of
beneficiaries   nor   former   can   be   given
precedence over the latter.
(8) Provisions of
Section 29
is constitutional and
does not deserves to be struck down.

(9)
Section   33
cannot   be   said   to   be
unconstitutional as it provides for the use of
Aadhaar data base for police investigation nor
it can be   said to violate protection granted
under
Article 20(3).

(10) Section 47 of the Aadhaar Act cannot be held to
be  unconstitutional on the ground that it does
not  allow an individual who finds that there is
a   violation   of   Aadhaar   Act   to   initiate   any
criminal process.

(11)
Section 57
, to the extent, which permits use of
Aadhaar by the State or any body corporate or
person,   in   pursuant   to   any   contract   to   this
effect is unconstitutional and void.  Thus, the
last   phrase   in   main   provision   of
Section   57
,
i.e. “or any contract to this effect” is struck
down.

(12)
Section   59
has   validated   all   actions   taken   by
the Central Government under the notifications
dated   28.01.2009     and   12.09.2009   and   all
actions   shall   be   deemed   to   have   been   taken
under the Aadhaar Act.
(13) Parental   consent   for   providing   biometric
information   under
Regulation   3
&   demographic
information   under
Regulation   4
has   to   be   read
for enrolment of children between 5 to 18 years
to uphold the constitutionality of Regulations
3   &   4   of   Aadhaar   (Enrolment   and   Update)
Regulations, 2016.

(14) Rule   9   as   amended   by   PMLA   (Second   Amendment)
Rules,   2017   is   not   unconstitutional   and   does
not violate
Articles 14
, 19(1)(g)
, 21

& 300A
of
the Constitution and Sections 3, 7 & 51 of the
Aadhaar Act.  Further Rule 9 as amended is not
ultra vires to
PMLA Act, 2002
.

(15) Circular   dated   23.03.2017   being
unconstitutional is set aside.

(16) Aadhaar   Act   has   been   rightly   passed   as   Money
Bill.     The   decision   of   Speaker   certifying   the
Aadhaar Bill, 2016 as Money Bill is not immuned
from Judicial Review.

(17)
Section   139
­AA   does   not   breach   fundamental
Right   of   Privacy   as   per   Privacy   Judgment   in

Puttaswamy
case.
(18) The   Aadhaar   Act   does   not   violate   the   interim
orders passed in Writ Petition (C) No. 494 of
2012 and other Writ Petitions.

387.   Now,   we   revert   back   to   the   batch   of   cases,   which

have come up for consideration before us.

388.  We having considered and answered the issues arising

in   this   batch   of   cases,   all   the   Writ   Petitions   filed

under
Article 32
deserves to be disposed of in accordance

with   our   conclusions   as   noted   above.     All   Transfer

Cases/Transfer Petitions are also deserves to be decided

accordingly.

389.   Now, we come to the Criminal Appeal arising out of

S.L.P. (Crl.) No. 2524 of 2014.   The above S.L.P. (Crl.)

arose out of an order passed by Judicial Magistrate First

Class dated 22.10.2013 by which Judicial Magistrate First

Class   directed   DG,   UIDAI   and   Dy.   Dg.   UIDAI   Technology

Centre,   Bangalore   to   provide   the   necessary   data   to   the

respondent C.B.I.   The said order was challenged in the

High Court by means of Criminal Writ Petition, in which

the   order   was   passed   by   the   High   Court   on   26.02.2014

giving rise to S.L.P. (Crl.) No. 2524 of 2014.
390.  We have noticed above that according to Aadhaar Act

Section 33
disclosure of information can be made as per

sub­section   (1)   pursuant   to   an   order   of   Court,   not

inferior to that of District Judge.   The order directing

for   disclosure   of   information   having   been   passed   by

Judicial Magistrate First Class, in the present case, the

order   is   not   in   consonance   with   sub­section   (1)   of

Section   33
,   hence   the   order   passed   by   Judicial

Magistrate, First Class dated 22.10.2013 and order of the

High Court passed in reference to the said order deserves

to be set aside.  Criminal Appeal is allowed accordingly.

391.     No   case   is   made   out   to   initiate   any   contempt

proceedings   in   the   contempt   applications   as   prayed   for.

All the contempt petitions are dismissed.

392.   In   result,   this   batch   of   cases   is   decided   in

following manner:­

(i) All the Writ Petitions filed under
Article 32

as well as Transfer Cases are disposed of as

per our conclusions recorded above.
(ii) Criminal   Appeal   arising   out   of   S.L.P.

(Criminal) No. 2524 of 2014 is allowed.

(iii) All the contempt applications are closed.

393.  Before we part, we record our deep appreciation for

the   industry,   hard   work   and   eloquence   shown   by   learned

counsel   for   the   parties   appearing   before   us,   which   was

amply   demonstrated   in   their   respective   arguments.

Learned   counsel   have   enlightened   us   with   all   relevant

concerned materials available in this country and abroad.

The   concern   raised   by   these   Public   Interest   Litigations

is   a   concern   shown   for   little   Indian   for   whom   the

Society, Government and Court exists.   We appreciate the

concern   and   passion   expressed   before   us   by   learned

counsel appearing for both the parties as well as those,

who were permitted to intervene in the matter. We close

by once more recording of our appreciation for the cause

espoused in these cases.

..............................J.
( ASHOK BHUSHAN )
NEW DELHI,
SEPTEMBER 26, 2018.