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.  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.  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 8 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, 2005 (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 21 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 4 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 567Development 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 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 374 of 567 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.
(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 14 and 21 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 567State 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.”