In the Supreme Court of India Civil Original Jurisdiction Case No. Writ petition (Civil) No. 494 of 2012 Petitioner Justice K.S .Puttaswamy (Retd) Respondent Union of India Date of Judgement Decided 26 September, 2018 Bench Justice D. Misra, Justice D.Y. Chandrachud , Justice A Bhushan, Justice A Khanwilkar, Justice A Sikri
The widely appreciated Aadhaar Scheme was launched in the year 2010 by the then Prime Minister Manmohan Singh and then Congress President Sonia Gandhi. This project was hailed as a part of Rajiv Gandhi’s ‘vision’, and was aimed at the inclusive growth of the country.
Aadhaar is a 12-digit unique identification number that can be obtained by residents of India, based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the government of India, under the jurisdiction of the Ministry of Electronics and Information Technology, following the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and services ) Act, 2016. Mr. Nandan Nilekani was the head of UIDAI at the time of launch of this massive project. Currently, Mr. Ajay Bhushan Pandey is the Chief Executive Officer of UIDAI.
In 2012, the first signs of Aadhaar becoming mandatory came to light, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID. Then, in 2013, banks began asking for Aadhaar to provide services. After coming into power in 2014, Narendra Modi decided to review the progress of the Aadhaar project and discussed the possibility of using the platform to resume the DBT of subsidised schemes.
The very first petition challenging Aadhaar was filed in 2012, the process for this case was kicked off by a October 2015 judgment by the Supreme Court. In the hearings that led up to the October 2015 judgment, the then attorney-general Mukul Rohatgi denied citizens had a fundamental right to privacy. The government’s contention became a crucial sticking point, because until this question could be decided, the larger constitutional challenge to Aadhaar could not be heard by the Supreme Court.
In March 2016, the government introduced the controversial Aadhaar bill as a money bill in Parliament. Opposition parties accused the government of using the money bill as a tool to bypass the Rajya Sabha, where the BJP did not hold a majority. However the bill passed in the Lok Sabha, a move that was welcomed by Arvind Panagariya, and although the Congress, which held a majority in the Rajya Sabha, returned the bill with 5 amendments, the BJP refused them and the Bill was deemed passed.
Then recently in 2018, the Hon’ble Supreme Court, allowed the use of Aadhaar in a number of government schemes, but maintained specifically that the “purely voluntary nature” of Aadhaar would continue till the court decided one way or another on the validity of the system through a constitution bench. The mandatory private use of Aadhar has also been struck down.
1. The Government Of India, initiated a project titled ‘Unique Identification for BPL Families’. A Committee was set up for this purpose which suggested the creation of Unique Identification database. It was decided to set up the project in three phases.
2. January, 2009 – Planning Commission of India passed a notification on UIDAI.
3. 2010- the National Identification Authority of India Bill, 2010
4. November 2012 – Retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL Writ Petition (Civil) No. 494 of 2012 in SC challenging validity of Aadhaar.
5. 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.
6. 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.
7. In 2016, with the passing of the Aadhaar Act, these very petitioners filed another writ petition challenging the vires of the Act. All the writ petitions were clubbed together.
8. In May, 2017 the Former Union minister and Congress leader Jairam Ramesh moved to SC Challenging the Centre’s decision to treat Aadhaar bill as a money bill.
9. Then, on August 24, 2017, nine-judge bench of the Hon’ble SC ruled that the right to privacy is a fundamental right. On January 17, 2018 a five-judge bench of the Supreme
Court began hearing of the Aadhar Case.
10. On April 25, 2018 the Hon’ble Supreme Court of India questioned the Centre on the mandate of seeding Aadhaar with mobile.
11. Then on May 10, 2018 SC reserved the Aadhaar verdict.
12. Finally on the historic day of September 26, 2018 the Hon’ble Supreme Court upheld the constitutional validity of the Aadhaar card but struck down certain provisions of the Aadhaar Act, including the compulsory linking of Aadhaar with bank accounts, mobile phones and school admissions.
The issues raised in this case were:-
(1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?
(a) What is the magnitude of protection that needs to be accorded to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such protection, including in respect of data 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? ( in context of Sections 7 and 8 of the Aadhaar Act.)
(3) Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?
(4) Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality:
- Sections 2(c) and 2(d) read with Section 32
- Section 2(h) read with Section 10 of CIDR
- Section 2(l) read with Regulation 23
- Section 2(v), Section 3,Section 5, Section 6, Section 8, Section 9
- Sections 11 to 23
- Sections 23 and 54
- Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
- Section 29, Section 33, Section 47, Section 48, Section 57, Section 59
(5) Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust?
(6) Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
(7) Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?
(8) Whether Rule 9(a)(17) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are unconstitutional?
(9) Whether Circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional?
(10) Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?
The petitioners had argued that the architecture of Aadhaar, by its very nature, is probabilistic and, therefore, it may result in exclusion, in many cases. Therefore, rather than extending subsidies, benefits and services to the section of society for which these are meant, it may have the tendency to exclude them from receiving such subsidies, benefits and services.
The foundational arguments were that the strict implementation of the Aadhaar scheme would be a grave risk to the rights and liberties of the citizens of this country which ought to be secured by the Constitution of India. It was also contended that Aadhar would militate against the constitutional abiding values and its foundational morality. It contained the potential to enable an intrusive state to become a surveillance state on the basis of information that would be collected in respect of each individual by creation of a joint electronic mesh.
Most of the counsel appearing for different petitioners (though not all) conceded that there cannot be a serious dispute insofar as allotment of Aadhaar number, for the purpose of unique identification of the residents, is concerned.
It was humbly argued that Right to Privacy was an integral part of Right to life and Personal liberty, and any restriction imposed on it should be in accordance with procedure established by law, i.e., it must satisfy the requirements of Art. 14 and 19. Also, the law imposing such restrictions should be just, fair and reasonable. As per the facts and circumstances of the case, the restrictions imposed by the government on the exercise of right to privacy of people, were arbitrary and unreasonable, as there existed no reasonable classification, and there was no nexus between such classification and the objective of the Act. Information sought from the people, severely violated the bodily and mental integrity of the people, in addition to having no relation to the objective of the Act. Also, classification based on religion was not only discriminatory but compelling the people to disclose their religion was in violation of Art. 25 of the Constitution of India, 1950. Further, making Aadhaar Cards mandatory for the purposes of benefit and non- benefit schemes would deprive the people of their choice; while putting them under constant surveillance of the state. This would amount to grave violation of right to life as it would encroach upon the dignity of the individual, which is the basic element of the Constitution.
Here are the key arguments made against Aadhaar by the top lawyers representing petitioners:
Divan was the first counsel to start the arguments on behalf of the petitioners. His arguments challenged the Aadhaar programme, the Aadhaar Act, 2016 and related entities. He argued:
- The state is constitutionally bound to provide subsidies, benefits and services to its citizens. Aadhaar makes the delivery of these conditional on citizens parting with their biometric and demographic information. The petitioners challenged Section 7 of the Aadhaar Act on this ground.
- The Aadhaar architecture is capable of tracking, tagging and profiling of individuals and, hence, it is unconstitutional.
- The UIDAI has the power to cancel the Aadhaar number anytime with the citizen having almost no redressal mechanism. That deprives him of services for which he or she would need an Aadhaar number.
- Section 57 of the Aadhaar Act extends the Aadhaar platform to government and private bodies, which makes it capable of turning into a surveillance state.
- In light of the judgement in Right to Privacy, aggregation of sensitive personal information of individuals cannot be allowed.
- There is no concept of consent in the Aadhaar Act and it is only ‘illusory’ as without Aadhaar authentication a person will be denied benefits, services and subsidies.
- Aadhaar violates informational privacy which has been recognised by the judgement in Right to Privacy case.
- Aadhaar fundamentally violates the balance between the citizen and the state.
- In absence of any “compelling state interest”, the collection of information of citizens violates Article 14 of the Constitution.
- Citizens cannot be forced to get an Aadhaar card if the state fails to account for subsidies, services and benefits and gives hypothetical figures of the savings.
- The Aadhaar Act is unconstitutional as it could not have been passed as a money bill—ones that do not require Rajya Sabha’s assent.
- Linking of bank accounts with Aadhaar violates rights of a citizen guaranteed under Article 14 and 21 as they cannot operate accounts without linking it with the unique ID.
- There is no valid reason provided for the linking of bank accounts with Aadhaar.
- Aadhaar will destroy decisional autonomy (right of choice) which has been recognised in the Right to Privacy judgement.
- Violates the principle of proportionality and rule of law as not having an Aadhaar destroys the existence of an individual.
- The Supreme Court judgement in Section 139AA of Income Tax Act, which mandates linking of Aadhaar, needs to be re-looked after the Right to Privacy judgement.
- Passage of Aadhaar Act as a money bill sets a dangerous precedent.
- Certain provisions of the Aadhaar Act have no relation to the nature of a money bill.
- There are strict criteria of what will qualify as a money bill, which bypasses the scrutiny of the Rajya Sabha as well as takes away the power of the President to send the bill back to Parliament for reconsideration.
- Provisions of the Act which do not fulfill the criteria of a money bill cannot be severed once the bill has been passed. Hence, the entire law needs to be struck down.
The respondents, stated on affidavit that the attempt of the respondents would ensure that no individual who is eligible for such benefits etc. is deprived form receiving those benefits, even when in a particular case, it is found that on authentication, his fingerprints or iris are not matching and is resulting into failure.
The respondents, rebutted the arguments of the petitioners that the architecture of the Aadhaar Act enables State surveillance. It was submitted that bare minimal information was obtained from the individual who enrolled for Aadhaar. Insofar as demographic information is concerned, it included name, date of birth, address, gender, mobile number and email address. The latter two are optional and meant for transmitting relevant information to the AMH and for One Time Password (OTP) based authentication. This information was in respect of an individual and is always in public domain. Section 2(k) of the Aadhaar Act specifically provides that regulations cannot include race, religion, caste, tribe, 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 noninvasive and non-intrusive identity information.
The comprehensive reports on data protection and informational privacy was prepared by the Group of Experts79 constituted by the Planning Commission of India under the Chairmanship of
Retd. Justice A.P. Shah, which submitted a report on 16 October, 2012. The five salient features of this report were expected to serve as a conceptual foundation for legislation protecting
privacy. The framework suggested by the expert group was based on five salient features: (i) Technological neutrality and interoperability with international standards; (ii) Multi-Dimensional
privacy; (iii) Horizontal applicability to state and non-state entities; (iv) Conformity with privacy principles; and (v) A co-regulatory enforcement regime.
The Union Government, on 31 July 2017, had constituted a committee chaired by Retd.Justice B N Srikrishna, former Judge of the Supreme Court of India to review data protection norms in the country and to make recommendations. The Committee recently released its report and the first draft of the Personal Data Protection Bill, 2018 which comprehensively addressed the processing of personal data where such data has been collected, disclosed, shared or otherwise processed within the territory of India. The bill had incorporated provisions and principles from the Europe’s General Data Protection Regulation (EUGDPR).
The Draft Bill replaced the traditional concepts of data controller i.e. the entity which processes data and data subject i.e. the natural person whose data is being collected, with data ‘fiduciary’ and data ‘principal’. It aimed to create a trust-based relationship between the two. The Bill largely incorporated data protection principles from the EUGDPR and EU data protection jurisprudence, including fair and reasonable processing of data, purpose limitation, collection limitation, lawful processing, storage limitation, data quality and accountability. The Draft bill and the report cull out rights and obligations of the data fiduciary and data controller respectively. These rights include the right to access and correction, the right to data portability and right to be forgotten – a right to prevent or restrict disclosure of personal data by a fiduciary. Most importantly, consent had been given a crucial status in the draft data protection law. Thus, a primary basis for processing of personal data must be individual consent.
Arguments in favour of Aadhaar and making it mandatory:-
- Aadhaar would qualitatively restructure the role of the state in the social sector.
- Aadhaar is the most widely held identity document in the country with around 92 crore people under it. Restricting Aadhar’s voluntary use would mean a majority of the population will not be able to use it to access various social schemes.
- Aadhaar can help eliminate duplication and impersonation in muster rolls and beneficiary lists, plugging the leaks that currently characterise most social welfare initiatives.
- It will impact nearly 1 crore workers under MGNREGA, who use Aadhaar to withdraw their wages every month, and nearly 30,00,000 pensioners.
- Countering the privacy argument, UIDAI says the data captured is secure and encrypted right at the source and all biometrics are stored in the Government of India’s servers with “world class security standards”
- Aadhaar number shall also help to eliminate the duplicate cards and fake cards for non-existent beneficiaries in the schemes.
- “Aadhaar” shall be able to reduce the involvement of middlemen who siphon off part of the subsidy.
- So far, the government subsidies contained products like food grains, fertilizers, water, electricity and services education, healthcare by providing them at a lower than market price to the beneficiaries. This has led to operational inefficiencies. An Aadhaar enabled DCT (Direct Cash Transfer) system will improve the situation and would ensure timely payment directly to intended beneficiaries, reduce transaction costs and leakages.
- There is a real possibility that India could save thousands of Crores of rupees in leakage, just by making sure that subsidies are delivered to the deserving citizen.
- This way state’s ability to focus and provide services to the deserving population group/s increases as it gets to put the money (which is a limited resource) where the mouth is. For example, in some places the state governments have identified Crores of duplicate ration cards.
- The government inserted a provision making it mandatory to quote Aadhaar number while applying for PAN card as well as when filing Income Tax returns. The main objective of this exercise is to link the PAN with Aadhaar and thereby, also identify tax evaders.
- The Central government reportedly argued that they had found that people were providing details of PAN cards which were procured on fake documents. There were several instances when a person owned many PAN cards which were eventually used to divert funds to shell companies. By making it mandatory to quote Aadhaar number while applying for PAN card will curb these wrongdoings.
- Nandan Nilekani, the brain behind Unique Identification Authority of India (UIDAI), recently has said that the government is right in making Aadhar mandatory. He said that the move will streamline the system and identify fraudulent practices in the country.
- Even, the Aadhaar Act regulations state that an individual’s Aadhaar number may be “omitted” permanently or deactivated temporarily by the Unique Identification Authority of India.
- Identity of a citizen in the wake of infiltrations from neighbouring countries may be described as the “missing link” in India’s efforts to rise as a superpower. Aadhaar may be termed as the technology linked identity drive in right direction.’’
Significance of the Aadhaar Verdict:-
- The Supreme Court upheld the validity of Aadhaar saying sufficient security measures are taken to protect data and it is difficult to launch surveillance on citizens on the basis of Aadhaar. A five-judge bench led by CJI Dipak Misraasked the government to provide more security measures as well as reduce the period of storage of data.
- Most commercial banks, payments bank and e-wallet companies like Paytm had so far been insisting customers to get their KYC done using Aadhaar card and had warned account holders that their services will be blocked in case of failure. Now they cannot seek Aadhaar data.
- Further to buy a new SIM card, the telecom service providers cannot seek Aadhaar details from their customers.
- Students of CBSE, NEET, UGC also do not require Aadhaar number to appear in exams. Even schools cannot seek Aadhaar card for admissions.
- Aadhaar card is however must for availing facilities of welfare schemes and government subsidies as it empowers the poor and marginalised.
- The Supreme Court had made exception for children saying that no child can be denied benefits of any scheme if he or she doesn’t have Aadhaar card. The apex court had struck down Section 57 of the Aadhaar Act as “unconstitutional”. This means that no company or private entity can seek Aadhaar identification from you. The constitution bench of the top court had also struck down the national security exception under the Aadhaar Act.
The hon’ble Supreme Court said that there is a fundamental difference between Aadhaar and other identity proof . Aadhaar cannot be duplicated and therefore it is an unique identification. It added that the main objective of Aadhaar is to empower the marginalised sections of the society, while giving them an identity. Thus, Aadhaar card has been made mandatory for availing government welfare schemes.
Critical Analysis of the Judgement:-
The Aadhaar scheme was one of the most ambitious projects of the Government of India. Launched with the sole purpose of empowering the marginalized section of the society, it was initiated as a scheme to provide a unique identification number for every citizen in India This scheme gave way to many privacy rights battles. The question of dignity, informational self-determination and consent formed the basis for the privacy rights claims surrounding the Aadhar scheme. On the historic day of 26th September 2018, a five-judge bench upheld the validity of Aadhaar Act but struck down many provisions leading to severe reduction in the functional character of law.
The majority judgment written by Justice A K Sikri, while declaring the Aadhaar Act to be constitutional, had struck down provisions such as section 33(2) as well as section 57. The question of possible state surveillance as well as possibility of data breach and exclusion of citizen from government services and schemes were mitigated on the basis of that fact that UIDAI has claimed the system to be largely foolproof. Threshold of right to privacy and constitutional principles of proportionality as well as dignity requirements were attenuated while upholding the constitutional validity of the Aadhaar Act as reasonable restriction.
But in the majority decision the requirement of right of autonomy and right of choice is not protected by upholding the Aadhaar Act. The requirement of Aadhaar for availing government schemes and benefits as well as linking of Aadhaar to the PAN card allowed by the Supreme Court majority decision does not provide any convincing constitutional rationale. Even the minimal exclusion of beneficiaries of government schemes, due to lack of Aadhaar or authentication problem could lead to violation of dignity protection as required by the constitution. Even though the majority has struck down the Section 33 (2) as well as the Section 57, the larger rationale of upholding the Aadhaar Act to be constitutional fails to meet the test of reasonable objective and reasonable means to impinge upon the right to privacy.
The Aadhaar decision clearly rules out the possibility of private entities using the authentication mechanism. It also sends a clear message that the right to privacy will now be an important entity for any further legislative action.