316 Section 59 of the Aadhaar Act is different from the validating provisions in Jaora Sugar Mills, SKG Sugar and Krishna Chandra. In those cases, state laws were invalid for want of legislative competence. Parliament, which undoubtedly possessed legislative competence, could enact a fresh law with retrospective effect and protect actions taken under the state law. The infirmity being that the earlier laws were void for absence of competence in the legislature, the fresh laws cured the defect of the absence of legislative competence.
555 Ibid, at page 306 432 PART J 317 Parliament and the State Legislatures have plenary power to legislate on subjects which fall within their legislative competence. The power is plenary because the legislature can legislate with prospective as well as with retrospective effect. Where a law suffers from a defect or has been invalidated, it is open to the legislature to remove the defect. While doing that, the legislature can validate administrative acts or decisions made under the invalid law in the past. The true test of a validation is that it must remove the defects in the earlier law. It is not enough for the validating law to state that the grounds of invalidity of the earlier law are deemed to have been removed. The validating law must remove the deficiencies. There were several deficiencies in the collection of biometric data during the period between 2009 and 2016, before the Aadhaar Act came into force. The first was the absence of enabling legislation. As a result, the collection of sensitive personal information took place without the authority of law. Second, the notification of 2009 did not authorize the collection of biometric data. Third, the collection of biometric data was without an enabling framework of the nature which the Aadhaar Act put into place with effect from 2016. The Aadhaar Act introduced a regime for obtaining informed consent, securing the confidentiality of information collected from citizens, penalties and offences for breach and regulated the uses to which the data which was collected could be put. In the absence of safeguards, the collection of biometric data prior of the enactment of Aadhaar Act 2016 is ultra vires.
433 PART J 318 Section 59 does not remove the cause for invalidity. First, Section 59 protects actions taken under the notification of 2009. The notification does not authorize the collection of biometric data. Hence, Section 59 would not provide legal authority for the collection of biometrics between 2009 and 2016. Second, it was through the Aadhaar Act, that safeguards were sought to be introduced for ensuring informed consent, confidentiality of information collected, restrictions on the use of the data and through a regime of penalties and offences for violation. Section 59 does not cure the absence of these safeguards between 2009 and 2016. Section 59 fails to meet the test of a validating law for the simple reason that the absence of safeguards and of a regulatory framework is not cured merely by validating what was done under the notifications of 2009 and 2016. There can be no dispute about the principle that the legislature is entitled to cure the violation of a fundamental right. But in order to do so, it is necessary to cure the basis or the foundation on which there was a violation of the fundamental right. The deficiency must be demonstrated to be cured by the validating law. Section 59 evidently fails to do so. It fails to remedy the deficiencies in regard to the conditions under which the collection of biometric data took place before the enforcement of the Aadhaar Act in 2016.
The Respondents submitted that Section 59 creates a deemed fiction and cited a few judgments in support of this contention. In Bishambhar Nath 434 PART J Kohli v State of Uttar Pradesh556, an Ordinance repealed another Ordinance. Section 58(3) of the repealing Ordinance stated:
“6…The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 or the Hyderabad Administration of Evacuee Property Regulation or of any corresponding law shall not affect the previous operation of that Ordinance, Regulation or corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance, Regulation or corresponding law, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.” (Emphasis supplied) 319 A Constitution Bench of this Court held that by virtue of Section 58, all things done and actions taken under the repealed ordinance are deemed to be done or taken in exercise of the powers conferred by the repealing Act, as if that Act were in force on the day on which that thing was done or action was taken. The things done or actions taken under the repealed ordinance are to be deemed by fiction to have been done or taken under the repealing Act. The actions were validated because the Act, in this case, was deemed to be “in force on the day on which such thing was done or action was taken”. Section 59 of the Aadhaar Act does not create this fiction. The Aadhaar Act does not come in force on the date on which the actions, which this Section seeks to validate, were taken.
320 A three judge Bench headed by one of us, Hon’ble Mr Justice Dipak Misra (as the learned Chief Justice then was) in State of Karnataka v State 556 (1966) 2 SCR 158 435 PART J of Tamil Nadu557, was dealing with a batch of civil appeals filed against a final order of the Cauvery Water Disputes Tribunal constituted under the Inter- State River Water Disputes Act, 1956. Section 6(2) of the 1956 Act provides:
“72…6(2).The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under Sub-
section (1), shall have the same force as an order or decree of the Supreme Court.”558 Relying on Section 6(2), it was contended that the jurisdiction of this Court is ousted as it cannot sit in appeal on its own decree. The Court did not accept the submission and held:
“74. The language employed in Section 6(2) suggests that the decision of the tribunal shall have the same force as the order or decree of this Court. There is a distinction between having the same force as an order or decree of this Court and passing of a decree by this Court after due adjudication. The Parliament has intentionally used the words from which it can be construed that a legal fiction is meant to serve the purpose for which the fiction has been created and not intended to travel beyond it. The purpose is to have the binding effect of the tribunal's award and the effectiveness of enforceability. Thus, it has to be narrowly construed regard being had to the purpose it is meant to serve…559 81…it is clear as crystal that the Parliament did not intend to create any kind of embargo on the jurisdiction of this Court.
The said provision was inserted to give the binding effect to the award passed by the tribunal. The fiction has been created for that limited purpose.”560 (Emphasis supplied) The judgment makes it clear that a deeming fiction cannot travel beyond what was originally intended. As stated earlier, the action of collecting and authentication of biometrics or the requirement of informed consent finds no 557 (2017) 3 SCC 362 558 Ibid, at page 405 559 Ibid, at page 406 560 Ibid, at page 408 436 PART J mention in the 2009 notification. Therefore, Section 59 cannot be held to create a deeming fiction that all the actions taken under the notifications issued were done under the Act and not under the aforesaid notifications. 321 This Court must also deal with the Respondents’ submission that Parliament is not debarred from enacting a validation law even though the Court did not have the opportunity to rule on the validity of the notifications which are purported by Section 59 to have been validated. The Respondents have placed reliance on a two judge Bench decision in Amarendra Kumar Mohapatra v State of Orissa.561 This case involved a challenge to the constitutional validity of the Orissa Service of Engineers (Validation of Appointment) Act, 2002 enacted to regularise ad hoc appointments of employees. The issue before the Court was whether the Orissa Act was in effect a validation statute to validate any illegality or defect in a pre-existing Act or rule in existence. The Court held that since the Orissa Act merely regularised the appointment of graduate Stipendiary Engineers working as ad hoc Assistant Engineers as Assistant Engineers, it could not be described as a validating law. It was held the legislation did not validate any such non- existent act, but simply appointed the ad hoc Assistant Engineers as substantive employees of the State by resort to a fiction. This Court held:
“31…a prior judicial pronouncement declaring an act, proceedings or rule to be invalid is not a condition precedent for the enactment of a Validation Act. Such a piece of legislation may be enacted to remove even a perceived invalidity, which the Court has had no opportunity to adjudge.
561 (2014) 4 SCC 583 437 PART J Absence of a judicial pronouncement is not, therefore, of much significance for determining whether or not the legislation is a validating law.”562 The Court further held that:
“25. … when the validity of any such Validation Act is called in question, the Court would have to carefully examine the law and determine whether (i) the vice of invalidity that rendered the act, rule, proceedings or action invalid has been cured by the validating legislation (ii) whether the legislature was competent to validate the act, action, proceedings or rule declared invalid in the previous judgments and (iii) whether such validation is consistent with the rights guaranteed by Part III of the Constitution.
It is only when the answer to all these three questions is in the affirmative that the Validation Act can be held to be effective and the consequences flowing from the adverse pronouncement of the Court held to have been neutralised.” (Emphasis supplied) 322 The two judge Bench relied upon the Constitution Bench decision of this Court in Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality563 to formulate the following pre-requisites of a piece of legislation that purports to validate any act, rule, action or proceedings:
“(a) The legislature enacting the Validation Act should be competent to enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the proceedings needs to be removed.” These judgments suggest that while there can be no disagreement with the proposition that a legislature has the power, within its competence, to make a law to validate a defective law, the validity of such a law would depend upon whether it removes the cause of ineffectiveness or invalidity of the previous 562 Ibid, at page 604 563 (1969) 2 SCC 283 438 PART K Act or proceedings. Parliament has the power to enact a law of validation to cure an illegality or defect in the pre-existing law, with or without a judicial determination. But that law should cure the cause of infirmity or invalidity. Section 59 fails to cure the cause of invalidity prior to the enactment of the Aadhaar Act.
K Rule of law and violation of interim orders 323 The rule of law is the cornerstone of modern democratic societies and protects the foundational values of a democracy. When the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary State power. It also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that her personal dealings with the State are regulated by general rules, binding on private citizens and public officials alike.564 It envisages a fundamental separation of powers among different organs of the State. Separation of power supports the accountability aspect of the rule of law. Separation of the judicial and executive powers is an essential feature of the rule of law. By entrusting the power of judicial review to courts, the doctrine prevents government officials from having the last word on whether 564T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001), available at http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199267880.001.0001/acprof-9780199267880- chapter-2 439 PART K they have acted illegally. The separation of judicial power provides an effective check on the executive branch.565 324 The concepts of the rule of law and separation of powers have been integral to Indian constitutional discourse. While both these concepts have not been specified in as many words in the Constitution, they have received immense attention from this Court in its judgments. Though the Indian Constitution does not follow the doctrine of separation of powers in a rigid sense, the following statement of the law by Chief Justice Mukherjea in Ram Sahib Ram Jawaya Kapur v State of Punjab566 is widely regarded as defining the core of its content:
“12…The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another...” Separation of powers envisages a system of checks and balances, which ensures governance by law and not by the caprice of those to whom governance is entrusted for the time being. By curbing excesses of power, it has a direct link with the preservation of institutional rectitude and individual liberty. In S G Jaisinghani v Union of India567, this Court held that:
“14. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of 565Denise Meyerson, The Rule of Law and the Separation of Powers (2004), available at http://www5.austlii.edu.au/au/journals/MqLJ/2004/1.html 566 (1955) 2 SCR 225 567 (1967) 2 SCR 703 440 PART K law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the Rule of law…” The separation of powers between the legislature, the executive and the judiciary has been declared to be part of the basic structure of the Constitution. In Kesavananda Bharati v State of Kerala568, Chief Justice Sikri held that:
“292…The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.”569 (Emphasis supplied) Justice HR Khanna held that the rule of law meant “supremacy of the Constitution and the laws as opposed to arbitrariness”570. The same view is expressed in subsequent decisions of this Court.571 In Smt Indira Nehru Gandhi v Shri Raj Narain572, Chief Justice AN Ray held the rule of law to be the basis of democracy.
568 (1973) 4 SCC 225 569 Ibid, at page 366 570 Ibid, at para 1529 571Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 (Supp.) SCC 1; State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640]; I .R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu, (2007) 2 SCC 1. 572 1975 Supp SCC 1 441 PART K The functional relationship between separation of powers and the rule of law was discussed by a Constitution Bench of this Court in State of Tamil Nadu v State of Kerala573, as follows:
“98. Indian Constitution, unlike the Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized separation of power as a basic feature of the Constitution and an essential constituent of the rule of law.
The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs--legislature, executive and judiciary.” This Court has consistently held judicial review to be an essential component of the separation of powers as well as of the rule of law. Judicial review involves determination not only of the constitutionality of law but also of the validity of administrative action. It protects the essence of the rule of law by ensuring that every discretionary power vested in the executive is exercised in a just, reasonable and fair manner.
325 In a reference574 under Article 143 of the Constitution, a seven judge Bench held that irrespective of “whether or not there is distinct and rigid separation of powers under the Indian Constitution”, the judicature has been entrusted the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of citizens. It was held: 573 (2014)12 SCC 696 574 (1965) 1 SCR 413 442 PART K “41…When a statute is challenged on the ground that it has been passed by Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not… If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country…” In his celebrated dissent in Additional District Magistrate, Jabalpur v Shivakant Shukla575, Justice HR Khanna, while referring to the rule of law as the “antithesis of arbitrariness”, held:
“527…Rule of law is now the accepted norm of all civilised societies... [E]verywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law.”576 326 Judicial review has been held to be one of the basic features of the Constitution. A seven judge Bench of this Court, in L Chandra Kumar v Union of India577, declared:
“78… the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.”578 575 (1976) 2 SCC 521 576 Ibid, at page 748 577 (1997) 3 SCC 261 578 Ibid, at page 301 443 PART K The complementary relationship between judicial review, the rule of law and the separation of powers is integral to working of the Constitution. This Court in I R Coelho v State of Tamil Nadu579 held thus:
“129… Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.”580 Judicial review, by protecting individual rights, promotes the foundational values of the Constitution and the rule of law. This Court took note of this aspect in Puttaswamy:
“295. Above all, it must be recognized that judicial review is a powerful guarantee against legislative encroachments on life and personal liberty. To cede this right would dilute the importance of the protection granted to life and personal liberty by the Constitution. Hence, while judicial review in constitutional challenges to the validity of legislation is exercised with a conscious regard for the presumption of constitutionality and for the separation of powers between the legislative, executive and judicial institutions, the constitutional power which is vested in the Court must be retained as a vibrant means of protecting the lives and freedoms of individuals.”581 327 Constitutional adjudication facilitates answers to the silences of the Constitution. The task of interpretation is to foster the spirit of the Constitution as much as its text. This role has exclusively been conferred on the Supreme Court and the High Courts to ensure that its values are not diminished by the 579 (2007) 2 SCC 1 580 Ibid, at page 58 581 Ibid, at page 497 444 PART K legislature or the executive. Our Court has been conscious of this role. In Krishna Kumar Singh v State of Bihar582, while dealing with the question whether an ordinance (promulgated by the Governor) which has a limited life can bring about consequences for the future (in terms of the creation of rights, privileges, liabilities and obligations) which will enure beyond its life, a seven judge Bench held that:
“91…The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the Rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy. The court's interpretation of the power to frame ordinances, which originates in the executive arm of government, cannot be oblivious to the basic notion that the primary form of law making is through the legislature...”583 (Emphasis supplied) The Court held that the ordinance making power must be carefully structured to ensure that it remains what the framers of our Constitution intended it to be:
an exceptional power to meet a constitutional necessity. 328 In a constitutional democracy, the power of government, is defined, limited, and distributed by the fundamental norms of the Constitution. A constitutional democracy holds its political regime accountable, responsible, or answerable for its decisions and actions while in public office. 584 A 582 (2017) 3 SCC 1 583 Ibid, at page 76 584 Almon Leroy Way, Jr., Constitutional Democracy & Other Political Regimes, available at http://www.proconservative.net/CUNAPolSci201PartTWOA.shtml 445 PART K constitutional democracy determines the degree and manner of distribution of political authority among the major organs or parts of the government. The limits of each institution are set by the Constitution. No institution which has been created by the Constitution can have absolute power. Separation of powers, envisaged by the Constitution between different institutions acts as a check and balance among the institutions and promotes the rule of law by ensuring that no institution can act in an arbitrary manner. Judicial review as a part of the basic structure of the Indian Constitution and as an essential component of the rule of law and separation of powers, is intended to ensure that every institution acts within its limits. Judicial review promotes transparency, consistency and accountability in the administration of law, and notions of equity, justice and fairness585. Constitutionalism thus puts a legal limitation on the government. It envisages the existence of limited government. Discretion conferred upon an institution of governance, be it the legislature or the executive, is confined within clearly defined limits of the Constitution. Not only are the organs of the State required to operate within their defined legitimate spheres; they are bound to exercise their powers within these spheres without violating the Constitution.586 Judicial review is a sanction and agency to enforce the limitations imposed by the Constitution upon the authority of the organs of the State. 585In Sheela Barse v. State of Maharashtra ((1983) 2 SCC 96), the Supreme Court insisted on fairness to women in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody, especially female prisoners. In Veena Sethi v. State of Bihar (AIR 1982 S.C. 1470), the Supreme Court extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not merely for those who have the means to fight for their rights and expanded the locus standi principle to help the poor 586Durga Das Basu, Limited Government and Judicial Review, LexisNexis, (2016) at pages 123-124 446 PART K This formulation of the limited power of political authority has been recognized in several judgments of this Court. In State of M P v Thakur Bharat Singh587, a Constitution Bench held:
“5…Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is a distribution of powers between the three organs of the State — legislative, executive and judicial — each organ having some check direct or indirect on the other; and (3) the rule of law which includes judicial review of arbitrary executive action…” (Emphasis supplied) 329 In a decision rendered by a Constitution Bench, in S P Sampath Kumar v Union of India588, Chief Justice P.N. Bhagwati, in his concurring opinion, held:
“3…It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. It is a limited government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Constitution… The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch 587(1967) 2 SCR 454 588 (1987) 1 SCC 124 447 PART K transgresses such limits. It is also a basic principle of the rule of law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities…”589 (Emphasis supplied) 330 In I R Coelho v State of Tamil Nadu590, a nine judge Bench held that control over government power ensures that the foundational values of a democracy are not damaged:
“43…The principle of constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision-making… The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Steyn, it is job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.” The rule of law is an implied limitation on the authority of any institution in a constitutional democracy.591 331 Interim orders of courts are an integral element of judicial review.
Interim directions issued on the basis of the prima facie findings in a case are 589 Ibid, at pages 128-129 590 (2007) 2 SCC 1 591 K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 448 PART K temporary arrangements till the matter is finally decided. Interim orders ensure that the cause which is being agitated does not become infructuous before the final hearing.592 The power of judicial review is not only about the writs issued by superior courts or the striking down of governmental action. Entrustment of judicial review is accompanied by a duty to ensure that judicial orders are complied with. Unless orders are enforced, citizens will lose faith in the efficacy of judicial review and in the legal system. It is in the background of the above constitutional position that this Court must deal with the contention that the interim orders passed by this Court, during the adjudication of the present dispute were not observed. This Court has consistently insisted, through its interim orders, on a restraint on the mandatory use of Aadhaar. It has been submitted that the interim orders have been violated and several contempt petitions are pending593 before this Court. 332 Prior to the enactment of the Aadhaar Act, the scheme was challenged before this Court. By its interim order dated 23 September 2013 594, a two judge Bench directed:
“All the matters require to be heard finally. List all matters for final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it 592State of Assam v. Barak Upatyaka DU Karmachari Sanstha, (2009) 5 SCC 694 593Contempt Petition (Civil) No. 144/2014 in WP (C) No. 494/2012; Contempt Petition (Civil) No. 674/2014 in WP (C) No. 829/2013; Contempt Petition (Civil) No 444/2016 in WP (C) No. 494/2012 594The interim order was in WP (Civil No. 494 of 2012) 449 PART K under the law and it should not be given to any illegal immigrant.” (sic) This was followed by an order dated 26 November 2013 where the earlier order was continued:
“After hearing the matter at length, we are of the view that all the States and Union Territories have to be impleaded as respondents to give effective directions. In view thereof notice be issued to all the States and Union Territories through standing counsel… Interim order to continue, in the meantime.” While considering another petition, Unique Identification Authority of India v Central Bureau of Investigation595, this Court directed in an interim order dated 24 March 2014:
“In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing… More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith… Tag and list the matter with main matter i.e. WP(C) No.494/2012.” On 16 March 2015, while considering WP (Civil) 494 of 2012, this Court noted a violation of its earlier order dated 23 September 2013 and directed thus:
“The matters require considerable time for hearing… In the meanwhile, it is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities. We do not propose to go into the specific instances. Since Union of India is represented by learned Solicitor General and all the States are represented through their respective counsel, we expect 595 SLP (Crl.) No. 2524/2015 450 PART K that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.” By an order dated 11 August 2015, a three judge Bench referred the issue as to whether privacy is a fundamental right to a bench of a larger strength of judges. The following interim directions were issued:
“Having considered the matter, we are of the view that the balance of interest would be best served, till the matter is finally decided by a larger Bench if the Union of India or the UIDAI proceed in the following manner:-
1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.” On 15 October 2015, a Constitution Bench of this Court partially modified the order dated 11 August 2015, thus:
“3…we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions), Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.451
PART K
4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.
5. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.” After the Aadhaar Act was enacted there was a challenge in All Bengal Minority Students Council v Union of India596, to a letter written to the Chief Secretaries/Administrators of all State Governments/Union territory Administrations by the Under Secretary to the Government of India, by which the requirement of the submission of Aadhaar for claiming benefits under a scheme was made mandatory. By an order dated 14 September 2016, a two judge Bench directed as follows:
“…we stay the operation and implementation of letters dated 14.07.2006 (i.e. Annexure P-5, P-6 and P-7) for Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme to the extent they have made submission of Aadhaar mandatory and direct the Ministry of Electronics and Information Technology, Government of India i.e. Respondent No.2 to remove Aadhaar number as a mandatory condition for student Registration form at the National Scholarship Portal of Ministry of Electronics and Information Technology, Government of India at the website http://scholarships.gov.in/newStudentRegFrm and stay the implementation of clause (c) of the 'Important Instructions' of the advertisement dated 20.08.2016 for the Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme, during the pendency of this writ petition.” It has been submitted that the notifications and circulars, which make the application of Aadhaar mandatory, are contrary to the interim orders passed by this Court. It has been contended that the Respondents have flouted the 596 WP (Civil) No. 686/2016 452 PART K most elementary norms of good governance and have disrespected judicial orders. This contention requires serious consideration.
333 The legislature cannot simply declare that the judgment of a court is invalid or that it stands nullified. In Kalpana Mehta, a Constitution Bench of this Court held:
“255…If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine.
That indeed is the basis on which validating legislation is permitted.”597 Where a final judgment or order of this Court is sought to be undone by an Act of Parliament, it is imperative that the basis of the Court’s judgment or order is removed. It has been held by this Court in Bhubaneshwar Singh v Union of India598:
“11. From time to time controversy has arisen as to whether the effect of judicial pronouncements of the High Court or the Supreme Court can be wiped out by amending the legislation with retrospective effect. Many such Amending Acts are called Validating Acts, validating the action taken under the particular enactments by removing the defect in the statute retrospectively because of which the statute or the part of it had been declared ultra vires. Such exercise has been held by this Court as not to amount to encroachment on the judicial power of the courts. The exercise of rendering ineffective the judgments or orders of competent courts by changing the very basis by legislation is a well-known device of validating legislation. This Court has repeatedly pointed out 597 Ibid, at page 126 598 (1994) 6 SCC 77 453 PART K that such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a court cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the court is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the court under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the court cannot be ignored.”599 (Emphasis supplied) When the Aadhaar Act was notified on 25 March 2016, the interim directions issued by this court were in operation. Was it then open to government to launch upon a virtual spree of administrative notifications making Aadhaar a mandatory requirement of virtually every aspect of human existence from birth until death?
The position which the Union government has adopted before this court is simply this: interim directions were issued by this court when the Aadhaar project was governed by executive instructions. Once a law was enacted by Parliament, a statutory authorisation was brought into existence to enable government to issue administrative instructions. Hence, compliance with the interim orders stands obviated upon the enactment of the law. 334 This defence of government can be scrutinized at two levels – the first as a matter of statutory interpretation and the second, on a broader foundation which engages the judicial power of this court. As a matter of 599 Ibid at pages 83-84 454 PART K statutory interpretation, the Aadhaar Act did not, as it could not have, merely nullified the interim orders of this court. Section 59 has no provision which gives it overriding effect notwithstanding any judgment, decree or order of a court. The interim orders do not stand superseded. Apart from approaching the issue purely as a matter of statutory interpretation, there are broader concerns which arise from the manner in which the authorities proceeded, oblivious to the interim directions. Interim directions were issued by this court in a situation where a constitutional challenge was addressed in a batch of petitions on the ground that the Aadhaar project was offensive to fundamental rights, including the right to privacy. So significant was the nature of the challenge that it was referred initially to a Constitution Bench and thereafter, to a bench of nine-judges of this Court for resolving the question as to whether privacy is a protected fundamental right. The collection and storage of biometric data and its use for the purpose of authentication is the subject of a constitutional challenge. Noting the nature of the challenge and after considering the serious issues which have arisen in the case, successive benches of this Court issued a series of interim directions. The purport of those directions is that Aadhaar could not be made mandatory except for specified schemes which were listed by the court. Moreover, in the context of the serious grievance of financial exclusion, the court directed that no individual should be excluded from the receipt of welfare entitlements, such as food-grains, for want of an Aadhaar number. The constitutional challenge was not obviated merely on the enactment of the Aadhaar Act. The law gave a 455 PART K statutory character to a project which since 2009 was possessed of an administrative or executive nature. The constitutional challenge to some of the basic features underlying the collection of biometric data still remained to be addressed by the court. The proceedings before this Court are testimony to the fact that the issue of constitutionality was indeed live. That being the position, the issuance of a spate of administrative notifications is in defiance of the interim orders passed by this Court. Judicial orders, be they interim or final, cannot simply be wished away. If governments or citizens were allowed to ignore judicially enforceable directions, that would negate the basis of the rule of law. Both propriety and constitutional duty required Union government to move this Court after the enactment of the Aadhaar Act for variation of the interim orders. Such an application would have required this Court to weigh on the one hand the subsequent development of the law being passed (something which would be relied upon by government) with the constitutional concerns over the entire biometric project. It is not as if that the mere enactment of the law put an end to the constitutional challenge. The existence of law (post 2016) is only one aspect to be considered in deciding the interim arrangement which would hold the field when the constitutional challenge was pending adjudication before this Court. Institutions of governance are bound by a sense of constitutional morality which requires them to abide by judicial orders. What seems to emerge from the course of action which has been followed in the present case by government is a perception that judicial directions can be ignored on a supposed construction of the statute. Besides 456 PART K the fact that this construction is erroneous in law, it is above all, the fundamental duty of this Court to ensure that its orders are not treated with disdain. If we were not to enforce a punctilious compliance with our own directions by government, that would ring a death – knell of the institutional position of the Supreme Court. If governments were free to ignore judicial directions at will, could a different yardstick be applied to citizens? The obligation to comply with judicial orders is universal to our polity and admits of no exception. Confronted with a brazen disregard of our interim orders, I believe that we have no course open except to stand firm. 335 The power of judicial review conferred on an independent judiciary requires that other organs of the State respect the authority of Courts. This Court in P Sambamurthy v State of Andhra Pradesh600, while highlighting the importance of judicial review in the rule of law regime, held thus:
“4… it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits- of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound, the death-knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet get away with it.”601 (Emphasis supplied) 600 (1987) 1 SCC 362 601 Ibid, at page 369 457 PART K 336 A Bench of two judges in Re: Arundhati Roy602 held that for the courts to protect the rule of law, it is necessary that the dignity and authority of the courts have to be respected and protected. It was held:
“‘Rule of Law’ is the basic rule of governance of any civilised democratic policy. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no-one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs.”603 (Emphasis supplied) The accountability of power, as a component of the rule of law, requires that the power vested in any organ of the State, and its agents, can only be used for promotion of constitutional values and vision.604 Governmental authority may only be exercised in accordance with written laws which are adopted though an established procedure. No action of the legislature or the executive can undermine the authority of the courts, except according to established principles. Disrespect of court orders results in impairment of the dignity of the courts.
602 (2002) 3 SCC 343 603 Ibid, at page 346 604 Nandini Sundar v State of Chhattisgarh, (2011) 7 SCC 547 458 PART K 337 Constitutional morality requires a government not to act in a manner which would become violative of the rule of law.605 Constitutional morality requires that the orders of this Court be complied with, faithfully. This Court is the ultimate custodian of the Constitution. The limits set by the Constitution are enforced by this Court. Constitutional morality requires that the faith of the citizens in the constitutional courts of the country be maintained.  That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P.
court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.” (Emphasis supplied) Many citizens, although aggrieved, are not in a condition to reach the highest Court. The poorest and socially neglected lack resources and awareness to reach this Court. Their grievances remain unaddressed. Such individuals suffer injury each day without remedy. Disobedience of the interim orders of this Court and its institutional authority, in the present case, has made a societal impact. It has also resulted in denial of subsidies and other benefits essential to the existence of a common citizen. Constitutional morality therefore needs to be enforced as a valid response to these arbitrary acts.
Non-compliance of the interim orders of this Court is contrary to constitutional 605 Manoj Narula v Union of India, (2014) 9 SCC 1 459 PART K morality. Constitutional morality, as an essential component of the rule of law, must neutralise the excesses of power by the executive. The brazen manner in which notifications have been issued making Aadhaar mandatory, despite the interim order of this Court is a matter of serious concern. Deference to the institutional authority of the Supreme Court is integral to the values which the Constitution adopts. The postulate of a limited government is enforced by the role of the Supreme Court in protecting the liberties of citizens and holding government accountable for its transgressions. The authority of this Court is crucial to maintaining the fine balances of power on which democracy thrives and survives. The orders of the Court are not recommendatory – they are binding directions of a constitutional adjudicator. Dilution of the institutional prestige of this Court can only be at the cost of endangering the freedom of over a billion citizens which judicial review seeks to safeguard. 338 Courts – as it is often said- have neither the power of the purse nor the sword. Our authority lies in constitutional legitimacy as much as in public confidence. Combined together they impart moral and institutional authority to the Court. That sense of legitimacy and duty have required me to assert once again the norms of a written Constitution and the rule of law. This judgment has taken a much wider postulation. Having held the Aadhaar Act prior to its passage not to be a Money Bill, I have delved into the merits of the constitutional challenge for two reasons: 460 PART L i. Merits have been argued in considerable detail both by petitioners and the Union of India; and ii. As a logical consequence of the view that the Aadhaar legislation is not a Money Bill, it would be open to the government to reintroduce fresh legislation. The principles governing a law regulating the right to data protection and informational privacy have hence been delineated.
L Conclusion 339 The present dispute has required this Court to analyze the provisions of
the Aadhaar Act and Regulations, along with the framework as it existed prior to the enactment of the Act, through the prism of the Constitution and the precedents of this Court. My conclusions are outlined below: (1) In order to deal with the challenge that the Aadhaar Act should not have been passed as a Money Bill, this Court was required to adjudicate whether the decision of the Speaker of the Lok Sabha to certify a Bill as a Money Bill, can be subject to judicial review. The judgment has analyzed the scope of the finality attributed to the Speaker’s decision, by looking at the history of Article 110(3) of the Constitution, by comparing it with the comparative constitutional practices which accord finality to the Speaker’s decision, by analyzing other constitutional provisions which use the phrase 461 PART L “shall be final”, and by examining the protection granted to parliamentary proceedings under Article 122. This judgment holds that:
(a) The phrase “shall be final” used under Article 110(3) aims at avoiding any controversy on the issue as to whether a Bill is a Money Bill, with respect to the Rajya Sabha and before the President. The language used in Article 110(3) does not exclude judicial review of the Speaker’s decision. This also applies to Article 199(3).
(b) The immunity from judicial review provided to parliamentary proceedings under Article 122 is limited to instances involving “irregularity of procedure”. The decisions of this Court in Special Reference, Ramdas Athawale and Raja Ram Pal hold that the validity of proceedings in Parliament or a State Legislature can be subject to judicial review when there is a substantive illegality or a constitutional violation. These judgments make it clear that the decision of the Speaker is subject to judicial review, if it suffers from illegality or from a violation of constitutional provisions.
(c) Article 255 has no relation with the decision of the Speaker on whether a Bill is a Money Bill. The three Judge Bench decision in Mohd Saeed Siddiqui erroneously interpreted the judgment in Mangalore Beedi to apply Articles 212 (or Article 122) and 255 to refrain from questioning the conduct of the Speaker (under Article 199 or 110). The two judge 462 PART L Bench decision in Yogendra Kumar followed Mohd Saeed Siddiqui. The correct position of law is that the decision of the Speaker under Articles 110(3) and 199(3) is not immune from judicial review. The decisions in Mohd Saeed Siddiqui and Yogendra Kumar are accordingly overruled.
(d) The existence of and the role of the Rajya Sabha, as an institution of federal bicameralism in the Indian Parliament, constitutes a part of the basic structure of the Constitution. The decision of the Speaker of the Lok Sabha to certify a Bill as a Money Bill has a direct impact on the role of the Rajya Sabha, since the latter has a limited role in the passing of a Money Bill. A decision of the Speaker of the Lok Sabha to declare an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha. The power of the Speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the Constitution. Judicial review of the Speaker’s decision, on whether a Bill is a Money Bill, is therefore necessary to protect the basic structure of the Constitution.
(2) To be certified a Money Bill, a Bill must contain “only provisions” dealing with every or any one of the matters set out in sub-clauses (a) to (g) of Article 110(1). A Bill, which has both provisions which fall within sub- clauses (a) to (g) of Article 110(1) and provisions which fall outside their 463 PART L scope, will not qualify to be a Money Bill. Thus, when a Bill which has been passed as a Money Bill has certain provisions which fall beyond the scope of sub-clauses (a) to (g) of Article 110(1), these provisions cannot be severed. If the bill was not a Money Bill, the role of the Rajya Sabha in its legislative passage could not have been denuded. The debasement of a constitutional institution cannot be countenanced by the Court. Democracy survives when constitutional institutions are vibrant. (3) The Aadhaar Act creates a statutory framework for obtaining a unique identity number, which is capable of being used for “any” purpose, among which availing benefits, subsidies and services, for which expenses are incurred from the Consolidated Fund of India, is just one purpose provided under Section 7. Clause (e) of Article 110(1) requires that a Money Bill must deal with the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India (or increasing the amount of the expenditure). Section 7 fails to fulfil this requirement. Section 7 does not declare the expenditure incurred to be a charge on the Consolidated Fund. It only provides that in the case of such services, benefits or subsidies, Aadhaar can be made mandatory to avail of them. Moreover, provisions other than Section 7 of the Act deal with several aspects relating to the Aadhaar numbers: enrolment on the basis of demographic and biometric information, generation of Aadhaar numbers, obtaining the consent of individuals before collecting their individual information, 464 PART L creation of a statutory authority to implement and supervise the process, protection of information collected during the process, disclosure of information in certain circumstances, creation of offences and penalties for disclosure or loss of information, and the use of the Aadhaar number for “any purpose”. All these provisions of the Aadhaar Act do not lie within the scope of sub-clauses (a) to (g) of Article 110(1). Hence, in the alternate, even if it is held that Section 7 bears a nexus to the expenditure incurred from the Consolidated Fund of India, the other provisions of the Act fail to fall within the domain of Article 110(1). Thus, the Aadhaar Act is declared unconstitutional for failing to meet the necessary requirements to have been certified as a Money Bill under Article 110(1). (4) The argument that the Aadhaar Act is in pith and substance a Money Bill, with its main objective being the delivery of subsidies, benefits and services flowing out of the Consolidated Fund of India and that the other provisions are ancillary to the main purpose of the Act also holds no ground, since the doctrine of pith and substance is used to examine whether the legislature has the competence to enact a law with regard to any of the three Lists in the Seventh Schedule of the Constitution. The doctrine cannot be invoked to declare whether a Bill satisfies the requirements set out in Article 110 of the Constitution to be certified a Money Bill. The argument of the Union of India misses the point that a Bill 465 PART L can be certified as a Money Bill “only” if it deals with all or any of the matters contained in clauses (a) to (g) of Article 110(1). (5) Having held that the Aadhaar Act is unconstitutional for having been passed as a Money Bill this judgment has also analysed the merits of the other constitutional challenges to the legislation as well as to the framework of the project before the law was enacted. (6) The architecture of the Aadhaar Act seeks to create a unique identity for residents on the basis of their demographic and biometric information. The Act sets up a process of identification by which the unique identity assigned to each individual is verified with the demographic and biometric information pertaining to that individual which is stored in a centralised repository of data. Identification of beneficiaries is integral and essential to the fulfilment of social welfare schemes and programmes, which are a part of the State’s attempts to ensure that its citizens have access to basic human facilities. This judgment accepts the contention of the Union of India that there is a legitimate state aim in maintaining a system of identification to ensure that the welfare benefits provided by the State reach the beneficiaries who are entitled, without diversion. (7) The Aadhaar programme involves application of biometric technology, which uses an individual’s biometric data as the basis of authentication or identification and is therefore intimately connected to the individual. While 466 PART L citizens have privacy interests in personal or private information collected about them, the unique nature of biometric data distinguishes it from other personal data, compounding concerns regarding privacy protections safeguarding biometric information. Once a biometric system is compromised, it is compromised forever. Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system. Adequate norms must be laid down for each step from the collection to retention of biometric data. At the time of collection, individuals must be informed about the collection procedure, the intended purpose of the collection, the reason why the particular data set is requested and who will have access to their data. Additionally, the retention period must be justified and individuals must be given the right to access, correct and delete their data at any point in time, a procedure familiar to an opt-out option.
(8) Prior to the enactment of the Aadhaar Act, no mandatory obligation was imposed upon the Registrars or the enrolling agencies, to obtain informed consent from residents before recording their biometric data, to inform them how the biometric data would be stored and used and about the existence of adequate safeguards to secure the data. Moreover, prior to the enactment of the Act, while UIDAI had itself contemplated that an identity theft could occur at the time of enrollment for Aadhaar cards, it 467 PART L had no solution to the possible harms which could result after the identity theft of a person.
(9) The Regulations framed subsequently under the Aadhaar Act also do not provide a robust mechanism on how informed consent is to be obtained from residents before collecting their biometric data. The Aadhaar Act and Regulations are bereft of the procedure through which an individual can access information related to his or her authentication record. The Aadhaar Act clearly has no defined options that should be made available to the Aadhaar number holders in case they do not wish to submit identity information during authentication, nor do the regulations specify the procedure to be followed in case the Aadhaar number holder does not provide consent for authentication.
(10) Sections 29(1) and (2) of the Act create a distinction between two classes of information (core biometric information and identity information), which are integral to individual identity and require equal protection. Section 29(4) suffers from overbreadth as it gives wide discretionary power to UIDAI to publish, display or post core biometric information of an individual for purposes specified by the regulations. (11) Sections 2(g), (j), (k) and (t) suffer from overbreadth, as these can lead to an invasive collection of biological attributes. These provisions give 468 PART L discretionary power to UIDAI to define the scope of biometric and demographic information and empower it to expand on the nature of information already collected at the time of enrollment, to the extent of also collecting any “such other biological attributes” that it may deem fit. (12) There is no clarity on how an individual is supposed to update his/her biometric information, in case the biometric information mismatches with the data stored in CIDR. The proviso to Section 28(5) of the Aadhaar Act, which disallows an individual access to the biometric information that forms the core of his or her unique ID, is violative of a fundamental principle that ownership of an individual’s data must at all times vest with the individual. UIDAI is also provided wide powers in relation to removing the biometric locking of residents. With this analysis of the measures taken by the Government of India prior to the enactment of the Aadhaar Act as well as a detailed analysis of the provisions under the Aadhaar Act, 2016 and supporting Regulations made under it, this judgment concludes that the Aadhaar programme violates essential norms pertaining to informational privacy, self-determination and data protection. (13) The State is under a constitutional obligation to safeguard the dignity of its citizens. Biometric technology which is the core of the Aadhaar programme is probabilistic in nature, leading to authentication failures. These authentication failures have led to the denial of rights and legal 469 PART L entitlements. The Aadhaar project has failed to account for and remedy the flaws in its framework and design which has led to serious instances of exclusion of eligible beneficiaries as demonstrated by the official figures from Government records including the Economic Survey of India 2016-17 and research studies. Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socio- economic rights of citizens is violative of human dignity and impermissible under our constitutional scheme.
(14) The violations of fundamental rights resulting from the Aadhaar scheme were tested on the touchstone of proportionality. The measures adopted by the respondents fail to satisfy the test of necessity and proportionality for the following reasons:
(a) Under the Aadhaar project, requesting entities can hold the identity information of individuals, for a temporary period. It was admitted by UIDAI that AUAs may store additional information according to their requirement to secure their system. ASAs have also been permitted to store logs of authentication transactions for a specific time period. It has been admitted by UIDAI that it gets the AUA code, ASA code, unique device code and the registered device code used for authentication, and that UIDAI would know from which device the authentication took 470 PART L place and through which AUA/ASA. Under the Regulations, UIDAI further stores the authentication transaction data. This is in violation of widely recognized data minimisation principles which mandate that data collectors and processors delete personal data records when the purpose for which it has been collected is fulfilled. Moreover, using the meta-data related to the transaction, the location of the authentication can easily be traced using the IP address, which impacts upon the privacy of the individual.
(b) From the verification log, it is possible to locate the places of transactions by an individual in the past five years. It is also possible through the Aadhaar database to track the current location of an individual, even without the verification log. The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database. Any leakage in the verification log poses an additional risk of an individual’s biometric data being vulnerable to unauthorised exploitation by third parties.
(c) The biometric database in the CIDR is accessible to third-party vendors providing biometric search and de-duplication algorithms, since neither the Central Government nor UIDAI have the source code for the de- duplication technology which is at the heart of the programme. The source code belongs to a foreign corporation. UIDAI is merely a licensee. Prior to the enactment of the Aadhaar Act, without the consent 471 PART L of individual citizens, UIDAI contracted with L-1 Identity Solutions (the foreign entity which provided the source code for biometric storage) to provide to it any personal information related to any resident of India. This is contrary to the basic requirement that an individual has the right to protect herself by maintaining control over personal information. The protection of the data of 1.2 billion citizens is a question of national security and cannot be subjected to the mere terms and conditions of a normal contract.
(d) Before the enactment of the Aadhaar Act, MOUs signed between UIDAI and Registrars were not contracts within the purview of Article 299 of the Constitution, and therefore, do not cover the acts done by the private entities engaged by the Registrars for enrolment. Since there is no privity of contract between UIDAI and the Enrolling agencies, the activities of the private parties engaged in the process of enrolment before the enactment of the Aadhaar Act have no statutory or legal backing.
(e) Under the Aadhaar architecture, UIDAI is the sole authority which carries out all administrative, adjudicatory, investigative, and monitoring functions of the project. While the Act confers these functions on UIDAI, it does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information. UIDAI also takes no institutional responsibility for verifying whether the data entered and 472 PART L stored in the CIDR is correct and authentic. The task has been delegated to the enrolment agency or the Registrar. Verification of data being entered in the CIDR is a highly sensitive task for which the UIDAI ought to have taken responsibility. The Aadhaar Act is also silent on the liability of UIDAI and its personnel in case of their non-compliance of the provisions of the Act or the regulations.
(f) Section 47 of the Act violates citizens’ right to seek remedies. Under Section 47(1), a court can take cognizance of an offence punishable under the Act only on a complaint made by UIDAI or any officer or person authorised by it. Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy. Further, Section 23(2)(s) of the Act requires UIDAI to establish a grievance redressal mechanism. Making the authority which is administering a project, also responsible for providing a grievance redressal mechanism for grievances arising from the project severely compromises the independence of the grievance redressal body.
(g) While the Act creates a regime of criminal offences and penalties, the absence of an independent regulatory framework renders the Act largely ineffective in dealing with data violations. The architecture of Aadhaar ought to have, but has failed to embody within the law the establishment of an independent monitoring authority (with a hierarchy 473 PART L of regulators), along with the broad principles for data protection. This compromise in the independence of the grievance redressal body impacts upon the possibility and quality of justice being delivered to citizens. In the absence of an independent regulatory and monitoring framework which provides robust safeguards for data protection, the Aadhaar Act cannot pass muster against a challenge on the ground of reasonableness under Article 14.
(h) No substantive provisions, such as those providing data minimization, have been laid down as guiding principles for the oversight mechanism provided under Section 33(2), which permits disclosure of identity information and authentication records in the interest of national security.
(i) Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling. Profiling could be used to predict the emergence of future choices and preferences of individuals. These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. This is contrary to privacy protection norms. Data cannot be used for any purpose other than those that have been approved. While developing an identification system of the magnitude of Aadhaar, security concerns relating to the data of 1.2 billion citizens 474 PART L ought to be addressed. These issues have not been dealt with by the Aadhaar Act. By failing to protect the constitutional rights of citizens, Section 57 violates Articles 14 and 21.
(j) Section 57 is susceptible to be applied to permit commercial exploitation of the data of individuals or to affect their behavioural patterns. Section 57 cannot pass constitutional muster. Since it is manifestly arbitrary, it suffers from overbreadth and violates Article 14.
(k) Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform. If the requirement of Aadhaar is made mandatory for every benefit or service which the government provides, it is impossible to live in contemporary India without Aadhaar. The inclusion of services and benefits in Section 7 is a pre-cursor to the kind of function creep which is inconsistent with the right to informational self-determination. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.
(l) The legitimate aim of the State can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification. The State has failed to demonstrate that a less intrusive measure other than biometric 475 PART L authentication would not subserve its purposes. That the state has been able to insist on an adherence to the Aadhaar scheme without exception is a result of the overbreadth of Section 7.
(m) When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy and poses severe threats due to potential surveillance.
(n) One right cannot be taken away at the behest of the other. The State has failed to satisfy this Court that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.
(15) Section 59 of the Aadhaar Act seeks to retrospectively validate the actions of the Central Government done prior to the Aadhaar Act pursuant to Notifications dated 28 January 2009. and 12 September 2015. Section 59 does not validate actions of the state governments or of private entities. Moreover, the notification of 2009 did not authorise the collection of biometric data. Consequently, the validation of actions taken under the 2009 notification by Section 59 does not save the collection of biometric data prior to the enforcement of the Act. While Parliament 476 PART L possesses the competence to enact a validating law, it must cure the cause of infirmity or invalidity. Section 59 fails to cure the cause of invalidity prior to the enactment of the Aadhaar Act. The absence of a legislative framework for the Aadhaar project between 2009 and 2016 left the biometric data of millions of Indian citizens bereft of the kind of protection which must be provided to comprehensively protect and enforce the right to privacy. Section 59 therefore fails to meet the test of a validating law since the complete absence of a regulatory framework and safeguards cannot be cured merely by validating what was done under the notifications of 2009 and 2016.
(16) The decision in Puttaswamy recognised that revenue constitutes a legitimate state aim in the three-pronged test of proportionality. However, the existence of a legitimate aim is insufficient to uphold the validity of the law, which must also meet the other parameters of proportionality spelt out in Puttaswamy.
(17) The seeding of Aadhaar with PAN cards depends on the constitutional validity of the Aadhaar legislation itself. Section 139AA of the Income Tax Act 1962 is based on the premise that the Aadhaar Act itself is a valid legislation. Since the Aadhaar Act itself is now held to be unconstitutional for having been enacted as a Money Bill and on the touchstone of proportionality, the seeding of Aadhaar to PAN under Article 139AA does not stand independently.
477 PART L (18) The 2017 amendments to the PMLA Rules fail to satisfy the test of proportionality. The imposition of a uniform requirement of linking Aadhaar numbers with all account based relationships proceeds on the presumption that all existing account holders as well as every individual who seeks to open an account in future is a potential money-launderer. No distinction has been made in the degree of imposition based on the client, the nature of the business relationship, the nature and value of the transactions or the actual possibility of terrorism and money- laundering. The rules also fail to make a distinction between opening an account and operating an account. Moreover, the consequences of the failure to submit an Aadhaar number are draconian. In their present form, the rules are clearly disproportionate and excessive. We clarify that this holding would not preclude the Union Government in the exercise of its rule making power and the Reserve Bank of India as the regulator to re-design the requirements in a manner that would ensure due fulfillment of the object of preventing money-laundering, subject to compliance with the principles of proportionality as outlined in this judgment. (19) Mobile phones have become a ubiquitous feature of the lives of people and the linking of Aadhaar numbers with SIM cards and the requirement of e-KYC authentication of mobile subscribers must necessarily be viewed in this light. Applying the proportionality test, the legitimate aim of subscriber verification, has to be balanced against the countervailing requirements of 478 PART L preserving the integrity of biometric data and the privacy of mobile phone subscribers. Mobile phones are a storehouse of personal data and reflect upon individual preferences, lifestyle and choices. The conflation of biometric information with SIM cards poses grave threats to individual privacy, liberty and autonomy. Having due regard to the test of proportionality which has been propounded in Puttaswamy and as elaborated in this judgment, the decision to link Aadhaar numbers with mobile SIM cards is neither valid nor constitutional. The mere existence of a legitimate state aim will not justify the disproportionate means which have been adopted in the present case. The biometric information and Aadhaar details collected by Telecom Service Providers shall be deleted forthwith and no use of the said information or details shall be made by TSPs or any agency or person or their behalf. (20) Defiance of judicial orders (both interim and final) be it by the government or by citizens negates the basis of the rule of law. Both propriety and constitutional duty required the Union government to move this Court after the enactment of the Aadhaar Act for variation of this Court’s interim orders. Institutions of governance are bound by a sense of constitutional morality which requires them to abide by judicial orders. (21) Identity is necessarily a plural concept. The Constitution also recognizes a multitude of identities through the plethora of rights that it safeguards. 479 PART L The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.
(22) The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional. (23) To enable the government to initiate steps for ensuring conformity with this judgment, it is directed under Article 142 that the existing data which has been collected shall not be destroyed for a period of one year. During this period, the data shall not be used for any purpose whatsoever. At the end of one year, if no fresh legislation has been enacted by the Union government in conformity with the principles which have been enunciated in this judgment, the data shall be destroyed. Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhaar scheme which severely impairs informational self-determination, 480 PART L individual privacy, dignity and autonomy. In order to uphold the democratic values of the Constitution, the government needs to address the concerns highlighted in this judgment which would provide a strong foundation for digital initiatives, which are imminent in today’s digital age. However, in its current form, the Aadhaar framework does not sufficiently assuage the concerns that have arisen from the operation of the project which have been discussed in this judgment.
……....................................................J [Dr Dhananjaya Y Chandrachud] New Delhi;
September 26, 2018.
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 494 OF 2012 JUSTICE K.S.PUTTASWAMY (RETD.) AND ANR. ...PETITIONERS VERSUS UNION OF INDIA AND ORS. ... RESPONDENTS WITH T.C.(C) No.151/2013, T.C.(C) No.152/2013, W.P.(C) No.833/2013 (PILW), W.P.(C) No.829/2013 (PILW), T.P. (C) No.1797/2013, W.P.(C) No.932/2013 (PILW), T.P.(C) No.1796/2013, CONMT. PET.(C) No.144/2014 In W.P.(C) No.494/2012 (PILW), T.P.(C) No.313/2014, T.P.(C) No.312/2014, SLP(Crl.) No.2524/2014, W.P.(C) No.37/2015 (PILW), W.P.(C) No.220/2015 (PILW), CONMT. PET.(C) No.674/2015 In W.P.(C) No.829/2013 (PILW), T.P.(C) No.921/2015, CONMT. PET.(C) No.470/2015 In W.P.(C) No.494/2012 (PILW), W.P.(C) No.231/2016 (PILW), CONMT. PET.(C) No.444/2016 In W.P.(C) No.494/2012 (PILW), CONMT. PET.(C) No.608/2016 In W.P.(C) No.494/2012 (PILW), W.P.(C) No.797/2016 (PILW), CONMT. PET.(C) No.844/2017 In W.P.(C) No.494/2012 (PILW), W.P.(C) No.342/2017 (PIL W), W.P.(C) No.372/2017, W.P.(C) No.841/2017, W.P.(C) No.1058/2017 (PILW), W.P.(C) No.966/2017 (PILW), W.P.(C) No. 1014/2017 (PILW), W.P. (C) No.1002/2017 (PILW), W.P.(C) No.1056/2017 and CONMT. PET.(C) No.34/2018 in W.P.(C) No.1014/2017 (PILW) J U D G M E N T ASHOK BHUSHAN, J.
The challenge in this batch of cases can be 2 divided in two parts, firstly, the challenge to Executive's Scheme dated 28.01.2009 notified by the Government of India, by which the Unique Identification Authority of India (hereinafter referred to as “UIDAI”) was constituted to implement the UIDAI Scheme, and secondly challenge to The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as “Act, 2016”).
2. The group of cases can be divided into four broad heads. First head consists of the sixteen Writ Petitions filed under Article 32 of the Constitution of India in this Court challenging the notification dated 28.01.2009 and/or the Act, 2016.
Second group consists of seven Transfer Cases/Transfer petitions to be heard alongwith Writ Petitions filed under Article 32.
Group three consists of only one Special Leave Petition (Criminal) No. 2524 of 2014 filed by UIDAI and Anr. Fourth group consists of seven Contempt 3 Petitions, which have been filed alleging violation of the interim orders passed by this Court in Writ Petitions and SLP (Criminal) as noted above.
3. Before we come to the different prayers made in the Writ Petitions wherein Executive Scheme dated 28.01.2009 as well as Act, 2016 has been challenged, it is useful to notice certain background facts, which lead to issuance of notification dated 28.01.2009 as well as the Act, 2016.
4. India is a country, which caters a sea of population. When the British left our country in 1947, total population of the country was only 330 million, which has rapidly increased into enormous figure of 1.3 billion as on date. The Citizenship Act, 1955 was enacted by the Parliament for the acquisition and determination of Indian Citizenship. Our constitutional framers have provided for adult franchise to every adult citizens. Election Commission of India had taken steps to provide for an identity 4 card to each person to enable him to exercise his franchise. The Citizenship Act, 1955 was amended by the Act 6 of 2004 whereas Section 14A was inserted providing that Central Government may compulsorily register every citizen of India and issue national identity card to him. The Planning Commission of the Government of India conceived a Unique Identification Project for providing a Unique Identity Number for each resident across the country, which was initially envisaged primarily as the basis for the efficient delivery of welfare services.
5. At first, in the year 2006, administrative approval was granted for the project “Unique Identity for BPL Families”. A Process Committee was constituted, which prepared a strategic vision on the Unique Identification Project. The Process Committee furnished a detailed proposal to the Planning Commission in the above regard. The Prime Minister approved the constitution of an empowered Group of Ministers to collate the two spheres, the national 5 population register under the Citizenship Act, 1955 and the Unique Identification Number Project of the Department of Information Technology. The empowered Group of Ministers recognised the need for creating an identity related resident database and to establish an institutional mechanism, which shall own the database and shall be responsible for its maintenance and updations on ongoing basis. The empowered Group of Ministers held various meetings to which inputs were provided from different sources including Committee of Secretaries. The recommendation of empowered Group of Ministers to constitute Unique Identification Authority of India (hereinafter referred to as “UIDAI”) was accepted with several guidelines laying down the roles and responsibilities of the UIDAI. The UIDAI was constituted under the aegis of Planning Commission of India. The Notification dated 28.01.2009 was issued constituting the UIDAI, providing for its composition, roles and responsibilities.
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6. In the year 2010, a bill namely the National Identification Authority of India Bill, 2010 providing for the establishment of the National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals, manner of authentication of such individuals to facilitate access to benefits and services to which they are entitled and for matters connected therewith or incidental thereto was introduced. The Bill was pending in the Parliament when the first Writ Petition i.e. Writ Petition (C) No. 494 of 2012 – Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors. Was filed. The Writ Petition under Article 32 was filed on the ground that fundamental rights of the innumerable citizens of India namely Right to Privacy falling under Article 21 of the Constitution of India are adversely affected by the Executive action of the Central Government proceeding to implement an Executive order dated 28.01.2009 and thereby issuing Aadhaar numbers to both citizens as also illegal 7 immigrants presently illegally residing in the country. While the Bill namely “National Identification Authority of India Bill, 2010”, which had already been introduced in the Rajya Sabha on 03.12.2010 and referred to the Standing Committee, had been rejected. The Writ Petition prayed for following reliefs: (A) ISSUE a writ in the nature of mandamus restraining the respondents Nos. 1 to 3 from issuing Aadhaar Numbers by way of implementing its Executive order dated 28.01.2009 (Annexure “P1”) which tentamount to implementing the provisions of the National Identification Authority of India Bill, 2010 pending before the Parliament until and unless the said Bill is considered and passed by the Parliament and becomes an Act of Parliament.
(B) Pass such other order/s as this Hon'ble Court may deem fit and proper in the circumstances of the case.
7. Writ Petition (C) No. 829 of 2013 Mr. S.G. Vombatkere & Anr. Vs. Union of India & Ors., was filed by Mr. S.G. Vombatkere and Bezwada Wilson questioning the UID Project and Aadhaar Scheme. The UID Project and Aadhaar Scheme were contended to be illegal and 8 violative of fundamental rights. It was also contended that the Scheme has no legislative sanction. Various other grounds for attacking the Scheme were enumerated in the Writ Petition. Writ Petition (C) No. 833 of 2013 – Ms. Aruna Roy & Anr. Vs. Union of India & Ors., was also filed challenging the UID Scheme. Other Writ Petitions being Writ Petition (C) No. 932 of 2013 and Writ Petition (C) No. 37 of 2015 came to be filed challenging the UID Scheme.
8. S.G. Vombatkere and Bezwada Wilson filed another Writ Petition (C) No. 220 of 2015 challenging the exercise of preparation of the National Population Register. Section 14A of the Citizenship Act, 1955 was also challenged as void and ultra vires. Petitioners have referred to earlier Writ Petition (C) No. 829 of 2013 and adopted the grounds already raised in the earlier Writ Petition. Writ petitioner had also challenged the collection of confidential biometric informations, which is neither sanctioned nor authorised under any Act or Rules.
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9. The Parliament enacted the Act, 2016, which contains following preamble: “An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.”
10. The Writ Petition (C) No. 231 of 2016 Shri Jairam Ramesh Vs. Union of India & Ors., was filed by Shri Jairam Ramesh seeking a direction declaring the Act, 2016 as unconstitutional, null and void and ultra vires. Writ Petition (C) No. 797 of 2016 S.G. Vombatkere & Ors. Vs. Union of India & Ors., was also filed by S.G. Vombatkere and Bezwada Wilson challenging the Act, 2016. The petitioners have also referred to earlier Writ Petition (C) No. 829 of 2013 and Writ Petition (C) No. 220 of 2015. The writ petitioners alleged various grounds for challenging the Act, 2016. Apart from seeking a direction to declare the Act, 2016 ultra vires, unconstitutional and null and void, prayers for declaring various 10 Sections of Act, 2016 as ultra vires, unconstitutional and null and void were also made. The writ petitioners claimed lots of reliefs from a to w, it is useful to quote the reliefs a to d, which are to the following effect: "a) Issue a Writ, order or direction in the nature of Certiorari or any other appropriate writ/order/direction declaring that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 is ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19 and 21 of the Constitution of India;
b) Issue a Writ, order or direction in the nature of Certiorari or any other appropriate writ/order/direction
declaring that sections 2(h), 2(l), 2(m), 2(v), 3, 5, 6, 7, 8, 9, 10, Chapter IV, Section 23 read with Section 54, Section 29, Section 30, Section 33, Section 47, Section 57 and Section 59 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 are ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19, 20(3) and 21 of the Constitution of India;
c) Issue a Writ, order or direction in the nature of Certiorari or any other appropriate writ/order/direction declaring that the right to privacy is a fundamental right guaranteed under Part III of the Constitution of India;
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d) Issue a Writ, order or direction in the nature of Certiorari or any other appropriate writ/order/direction declaring that no person may be deprived of receiving any financial subsidy or other subsidy or benefit or services from the State on the ground that he or she does not have an Aadhaar number;”
11. Writ Petition (C) No. 342 of 2017 Shantha Sinha & Anr. Vs. Union of India & Anr. Was filed challenging the Act, 2016. Apart from seeking a direction to declare various Sections of Act, 2016 as null and void, writ petitioners also prayed for a direction declaring Sections 2(h), 2(l), 2(m), 2(v), 3, 5, 6, 7, 8, 9, 10, Chapter IV, Section 23 read with Section 54, Section 29, Section 30, Section 33, Section 47, Section 57 and Section 59 of the Act, 2016 as ultra vires, unconstitutional and null and void. Writ Petition (Civil) NO. 372 of 2017 Shankar Prasad Dangi Vs. Bharat Cooking Coal Limited & Another, was filed by Shankar Prasad Dangi, who claims to be employed under the Bharat Cooking Coal Limited. Petitioner filed the writ petition seeking a mandamus directing the respondents not to compel the petitioner 12 to submit the Aadhaar Card copy. The petitioner placed reliance on Order of this Court dated 14.09.2016 in Writ Petition (C) No. 686 of 2016. Writ Petition (C) No. 841 of 2017 has also been filed by State of West Bengal challenging various notifications issued under Section 7 of the Act, 2016. The petitioner also sought a direction declaring that no person may be deprived of receiving any benefit or services from the State on the ground that he or she does not have an Aadhaar number or Aadhaar enrolment. Writ Petition (C) No. 1058 of 2017 – Mathew Thomas Vs. Union of India & Ors. has been filed challenging the Act, 2016. The writ petitioner also prayed for declaring Prevention of Money Laundering Rules (Second Amendment) 2017 as violative of Articles 14, 19 and 21 of the Constitution. Section 139AA of the Income Tax Act, 1961 was also prayed to be declared as violative of Articles 14, 19 and 21 of the Constitution.
12. Writ Petition (C) No. 966 of 2017 – Raghav Tankha Vs. Union of India through its Secretary & Ors. has been filed seeking following prayers: 13 "a) Issue a Writ of Mandamus or any other appropriate writ, order or direction under Article 32 of the Constitution of India, directing the Respondents to declare that Aadhaar is not mandatory for the purpose of authentication while obtaining a mobile connection; or the re verification of Subscribers, being completely illegal, arbitrary and mala fide; and/or
b) Issue a Writ of Mandamus or any other appropriate writ, order or direction under Article 32 of the Constitution of India, directing the Respondents Number 2 to 6, to take immediate steps in the present situation, for restraining and banning the transfer of data from UIDAI to Private Telecom Service Providers and Aadhaar being made the only option of authentication; and/or”
13. Writ Petition (C) No. 1014 of 2017 – M.G.
Devasahayam and Ors. Vs. Union of India & Anr. has been filed, where following prayers have been made: “a) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction declaring Rule 9 of the Prevention of Money Laundering Rules, 2017 as amended by the Prevention of Money Laundering (Second Amendment) Rules, 2017 as ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19 and 21 of the Constitution of India;
b) This Hon'ble Court may be pleased to issue an appropriate writ, order or 14 direction declaring that bank accounts will not be denied or ceased on the basis that he or she does not have an Aadhaar number;
c) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction in the nature of mandamus against the Respondents directing them to forthwith forbear from implementing or acting pursuant to or in implementation of Rule 9 of the Prevention of Money Laundering Rules, 2017 as amended by the Prevention of Money Laundering (Second Amendment) Rules, 2017;
d) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction in the nature of mandamus against the Respondents directing them to forthwith clarify by issuing appropriate announcements, circulars and/or directions that no citizen of India is required to obtain an Aadhaar number/Aadhaar card and that the program under the Aadhaar Act is entirely voluntary even for opening or maintaining the bank accounts and carrying financial transactions;
e) This Hon'ble Court may be pleased to award costs relating to the present petition to the petitioners; and
f) This Hon'ble Court may be pleased to issue any other writ/order/direction in the nature of mandamus as this Hon'ble Court may deem fit an proper in the circumstances of the case.”
14. Writ Petition (C) No. 1002 of 2017 – Dr. Kalyani 15 Menon Sen Vs. Union of India and Others, also sought declaration that Rule 2(b) of the Prevention of Money Laundering (Maintenance of Records) Second Amendment Rules, 2017 is ultra vires. Circular dated 23.03.2017 issued by the Department of Telecommunication was also sought to be declared as ultra vires, unconstitutional, null and void. A further direction was sought declaring that pursuant to the Circular dated 23.03.2017, the mobile phone numbers of subscribers will not be made inoperational, and future applicants will not be coerced to submit their Aadhaar numbers. Certain other reliefs have also been claimed in the writ petition. Writ Petition (C) No. 1056 of 2017 – Nachiket Udupa & Anr. Vs. Union of India & Ors. has been filed challenging the Act, 2016 and with other prayers, which is as follows: A. Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 [ACT No. 18 of 2016] as illegal and violative of Articles 14, 19(1)(a) and 21 of the Constitution of India;
16B. In the alternative to Prayer (A), issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy against Respondent No. 3 to provide 'optout' or process to delete identity information from Central Identities Data Repository at the option of Aadhaar Number Holders;
C Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Enrolment and Update) Regulations, 2016 being illegal, and ultra vires the Aadhaar Act and violative of Articles 14 and 21 of the Constitution of India;
D. Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Authentication) Regulations, 2016 as being illegal and ultra vires the Aadhaar Act and violative of Articles 14 and 21 of the Constitution of India;
E. Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Data Security) Regulations, 2016 as being illegal, and ultra vires the Aadhaar Act and violative of Articles 14 and 21 of the Constitution of India;
F. Issue a Writ of Declaration and 17 Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Sharing of Information) Regulations, 2016 as being illegal, and ultra vires the Aadhaar Act and violative of Articles 14 and 21 of the Constitution of India;
G. Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Direction issued by Respondent No. 2 on 23.03.2017 vide File No. 800262/2016 AS.II, as being illegal, ultra vires the Aadhaar Act and violative the Articles 14, 19(1)(a) and 21, of the Constitution;
H. In the alternative to Prayer (G) above, issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to Respondent No. 2 to prohibit all Telecom Service Providers from storing, retaining, making copies or in any manner dealing with Aadhaar Number, biometric information or any demographic information received from Respondent No. 3 in the process of authentication and/or identity verification of mobile numbers;
I. Pass such further and other orders as this Hon'ble Court may deem fit and proper in the instant facts and circumstances.”
15. There are seven Transfer Cases/Transfer Petitions 18 to be heard alongwith the Writ Petitions filed under Article 32, where the issues pertaining to UID Scheme and other related issues were also raised before different High Courts. Four Transfer Applications have been filed by Indian Oil Corporation Limited praying for transfer of different writ petitions pending in different High Courts to be heard alongwith Writ Petition (C) No. 494 of 2012 – Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors., which was considering the same issues. This Court had passed order in few transfer petitions allowing the same and issued certain directions, rest of transfer petitions are also allowed.
16. One Transfer Petition has also been filed by Union of India for transferring Writ Petition (C) No. 2764 of 2013 – Sri V. Viswanandham Vs. Union of India & Ors., pending in the High Court of Hyderabad. It is not necessary to notice various issues in the pending different writ petitions, which were sought to be transferred by above transfer petitions/transfer 19 cases. Issues pending in different High Courts were more or less same, which have been raised in leading Writ Petition (C) No. 494 of 2012 Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors. and other writ petitions, which were entertained and pending in this Court. Special Leave Petition (Crl.) No. 2524 of 2014 has been filed by UIDAI and Anr. challenging the interim order dated 18.03.2014 passed by High Court of Bombay at Goa in Criminal Writ Petition No. 10 of 2014 – Unique Identification Authority of India Through its Director General & Anr. Vs. Central Bureau of Investigation. On an application filed by the Central Bureau of Investigation, a Magistrate passed an order on 22.10.2013 directing the UIDAI to provide certain data with regard to a case of a rape of seven years old child. The Bombay High Court at Goa passed an order dated 18.03.2014 issuing certain interim directions, which were challenged by UIDAI in the aforesaid special leave petition. This Court passed an interim order on 24.03.2014 staying the order passed by Bombay High Court at Goa. This 20 Court also by the interim order restrained the UIDAI to transfer any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. This special leave petition was directed to be listed alongwith Writ Petition (C) No. 494 of 2012.
17. This Court in Writ Petition (C) No. 494 of 2012 has issued various Interim Orders dated 23.09.2013, 24.03.2014, 16.03.2015, 11.08.2015 and 15.10.2015.
18. Seven Contempt Petitions have been filed. Out of seven, five contempt petitions have been filed alleging violation of the aforesaid interim orders and praying for issuing proceedings against the respondents contemnor for willful disobeying the interim orders. One Contempt Petition (C) No. 674 of 2015 in W.P.(C) No.829 of 2013 has been filed for issuing proceedings against the respondents contemnor for wilfully disobeying the orders dated 23.09.2013, 24.03.2014 and 16.03.2015 passed by this Court. The 21 other Contempt Petition (C) No. 34 of 2018 in W.P.(C) No. 1014 of 2017 has been filed against the respondent contemnors for wilfully disobeying the order dated 03.11.2017 passed by this Court in the aforesaid writ petition. All the contempt applications are pending without any order of issuing notice in the contempt petitions.
19. Writ Petition (C) No.494 of 2012 : Justice K.S. Puttaswamy(Retd.) and another vs. Union of India and others, has been treated as leading petition wherein various orders and proceedings have been taken, few of such orders and proceedings also need to be noted. An interim order dated 23.09.2013 was passed in Writ Petition (C) No.494 of 2012 which is to the following effect:
“Issue notice in W.P.(C) No. 829/2013.
Application for deletion of the name of petitioner no. 1 in T.P.(C) Nos. 47 of 2013 is allowed.
T.P.(C)nos. 4748 of 2013 and T.P.(C) No. 476 of 2013 are allowed in terms of the signed order.22
All the matters require to be heard finally. List all matters for final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”
20. By order dated 26.11.2013 all the States and Union Territories were impleaded as respondents to give effective directions. Interim order passed earlier was also continued. On 24.03.2014 following order was passed in SLP(Crl.) No.2524 of 2014:
“Issue notice.
In addition to normal mode of service, dasti service, is permitted.
Operation of the impugned order shall remain stayed.
In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing.
More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in 23 order to meet the requirement of the interim order passed by this Court forthwith.
Tag and list the matter with main matter i.e. WP(C) No.494/2012.”
21. This court on 16.03.2015 in Writ Petition (C) No.494 of 2012 directed both the Union of India and the States and all their functionaries should adhere to the order dated 23.09.2013.
22. A threeJudge Bench on 11.08.2015 passed an order referring the matter to a Bench of appropriate strength. After reference was made on a prayer made by the petitioners, following interim directions were also passed by the Bench :
“Having considered the matter, we are of the view that the balance of interest would be best served, till the matter is finally decided by a larger Bench if the Union of India or the UIDA proceed in the following manner:
1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;24
3. The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of food grains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique 15 Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation. Ordered accordingly.”
23. A Constitution Bench of five Judges on 15.10.2015 passed an order after hearing application filed by the Union of India for seeking certain clarification/modification in the earlier order dated 11.08.2015, part of order, which is relevant for the present case is as follows:
“3. After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G.
Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund 25 Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.
5. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”
24. A threeJudge Bench of this Court in its reference order dated 11.08.2015 noticed that these cases raise farreaching questions of importance, which involves interpretation of the Constitution. Two earlier decisions of this Court, i.e., M.P. Sharma & Others Vs. Satish Chandra & Others, 1954 AIR SC 300, rendered by eight Judges and another judgment rendered by six Judges Bench in Kharak Singh Vs. State of U.P. & Others, AIR 1963 SC 1295 were noticed and it was observed that in the event the observations made in the above two judgments are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. The three 26 Judge Bench observed that to give quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.
25. By order dated 18.07.2017, a Constitution Bench considered it appropriate that the issue be resolved by a Bench of Nine Judge. Following order was passed on 18.07.2017 by a Constitution Bench:
“During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P.
Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. 1950 SCR 1077 by an eightJudge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. 1962 (1) SCR 332 by a sixJudge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position.27
Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nineJudge Constitution Bench. List these matters before the NineJudge Constitution Bench on 19.07.2017.
Liberty is granted to the learned counsel appearing for the rival parties to submit their written briefs in the meantime.”
26. A nineJudge Constitution Bench proceeded to hear and decide all aspects of right of privacy as contained in the Constitution of India.
27. Dr. D.Y. Chandrachud delivered opinion on his behalf as well as on behalf of Khehar, CJ., Agrawal, J. and Nazeer, J. Jasti Chelameswar, J., Bobde, J., Sapre, J. and Kaul, J. also delivered concurring, but separate opinions. The opinion of all the nine Judges delivered in above cases held that right of privacy is a right which is constitutionally protected and it is a part of protection guaranteed under Article 21 of the Constitution of India. Explaining the essential nature of privacy, Dr. D.Y. Chandrachud, J. in paragraphs 297 and 298 laid down following:
“297. What, then, does privacy postulate?
Privacy postulates the reservation of a 28 private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual.
The ability of an individual to make choices lies at the core of the human personality.
The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different 29 and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy.
Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind.
The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State 30 from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity.  Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and selfdetermination require a choice to be made within the privacy of the mind. The constitutional right 31 to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alphasuffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and selfdetermination.”
28. Privacy has been held to be an intrinsic element of the right to life and personal liberty Under Article 21 and has a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. It was further held that like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of 32 law. The procedure established by law must be fair, just and reasonable.
29. The nineJudge Constitution Bench also noticed the context of right of privacy under the international covenants. The protection of right of privacy as developed in U.K. decision, decisions of US Supreme Court, constitutional right to privacy in South Africa, constitutional right to privacy in Canada, privacy under European convention on human rights and under Charter of fundamental rights of European Union were considered with reference to decision rendered by foreign courts.
30. Justice D.Y. Chandradhud in his judgment traced the right of privacy from the judgments of this Court which were rendered for the last five decades. Referring to International Law on the subject, following observations were made by Justice D.Y. Chandradhud, J.:
“103...In the view of this Court, international law has to be construed as a 33 part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party. Consequently, as new cases brought new issues and problems before the Court, the content of the right to privacy has found elaboration in these diverse contexts.”
31. All contours of the right of privacy having been noticed with all its dimensions, precautions and safeguards to be applied to protect fundamental rights guaranteed under the Constitution of India, we while proceeding to decide the issues raised herein have to proceed in the light of nineJudge Constitution Bench of this Court as noticed above.
32. We have been manifestly benefited by able and elaborate submissions raised before us by many eminent learned senior counsel appearing for both the parties. Learned counsel for both the parties have advanced their submissions with clarity, conviction and lot of persuasions. On occasions very passionate arguments were advanced to support the respective submissions. 34
33. Different aspects of the case have been taken up and advanced by different counsel as per understanding between them which enlightened the Court on varied aspects of the case. The submissions have been advanced on behalf of the petitioners by learned senior Advocates, namely, Shri Kapil Sibal, Shri Gopal Subramanium, Shri P. Chidambaram, Shri Shyam Divan, Shri K.V. Viswanathan, Shri Neeraj Kishan Kaul, Ms. Meenakshi Arora, Shri C.U. Singh, Shri Anand Grover, Shri Sanjay R. Hegde, Shri Arvind P. Datar, Shri V.Giri, Shri Sajan Poovayya and Shri P.V. Surendra Nath. A large number of other counsel also assisted us including Mr. Gopal Sankaranarayanan. On behalf of respondents arguments were led by the learned Attorney General, Shri K.K. Venugopal. We have also heard Shri Tushar Mehta, Additional Solicitor General, Shri Rakesh Dwivedi, learned senior counsel and Shri Zohaib Hossain.
34. We also permitted Dr. Ajay B. Pandey, Chief Executive Officer, UIDAI to give a power presentation 35 to explain actual working of the system. After the power presentation was presented by Dr. Pandey in the presence of the learned counsel for the parties, learned counsel have also thereafter raised certain questions in respect of the power presentation, which the respondents during submissions have tried to explain. In view of the enormity of submissions raised by the different learned counsel appearing for the petitioners, we proceed to notice different part of submissions together. As noted above writ petitions have been filed at two stages, firstly, when UIDAI Scheme was being impleaded by the Executive order dated 28.01.2009. Secondly, challenge was raised when Act, 2016 was enacted. The challenge to the Scheme dated 24.01.2009 contained almost same grounds on which Act, 2016 has been attacked. Additional ground to challenge the Scheme was that Scheme having not been backed by law, the entire exercise was unconstitutional and violative of fundamental rights guaranteed under the Constitution of India and deserved to be set aside. The Act, 2016 having enacted 36 and now statutory scheme is in place, we shall first proceed to notice the submissions attacking the Act, 2016 which challenge has been substantial and elaborately raised before us.
Petitioner's Submissions
35. The submissions advanced by different learned counsel for the petitioners instead of noticing individually are being noted together in seriatim, which are as follows:
36. The Aadhaar project initiated by Executive notification dated 28.01.2009 as well as impugned Act, 2016 violates Article 21. The constitutional rights of a person protected under Articles 19 and 21 of the Constitution is violated as individuals are compelled to part with their demographic and biometric information at the point of collection. Biometric data is part of one's body and control over one's body lies on the very centre of the Right of Privacy. Decisional privacy allows individual to make a 37 decision about their own body and is an aspect of right of selfdetermination. The Aadhaar Project including the Aadhaar Act violate the informational privacy. Data collection at the enrolment centres, the Data retention at Central Identities Data Repositories (CIDR), usage and sharing of data violates Right of Privacy. There is complete absence of safeguards at the stage of collection, retention and use of data. Act, 2016 and Regulations framed thereunder lack safeguards to secure sensitive personal data of a person.
37. The Aadhaar project including Act, 2016 creates an architecture for pervasive surveillance, which again violate fundamental Right to Privacy. Personal data collected under the Executive scheme dated 28.01.2009 was without any individual's consent. The Act, 2016 although contemplate that enrolment under Aadhaar is voluntary but in actual working of the Act, it becomes defacto compulsory. The Act, 2016 does not pass the threefold test as laid down by Nine Judges Bench in 38 Privacy Judgment K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1, hereinafter referred to as “Puttaswamy case”. The Threefold test laid down in Puttaswamy's case are:
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and
(iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them;