174. The petitioners have relied on European Court, Human Rights in S. and Marper vs. The United Kingdom, 153 2008 (48)EHRR 50. The applicants, S and Marper had submitted two applications against the United Kingdom, Great Britain and Northern Ireland under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants complained that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued. The applicants had applied for judicial review of the police decisions not to destroy the fingerprints and samples which application was rejected. The Court of appeal upheld the decision of the Administrative Court. The House of Lords had also dismissed the appeal on 22nd July, 2004. The House of Lords had taken the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed.
154
175. BARONESS HALE disagreed with the majority considering that the retention of both fingerprint and DNA data constituted an interference by the State in a person’s right to respect for his private life and thus required justification under the Convention. The application of the applicant was taken by European Court of Human Rights (Strasbourg Court). The Strasbourg Court noticed that majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellur samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.
176. Strasbourg Court held that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8. It was further held that in determining whether the personal information retained by the 155 authorities involves any of the privatelife aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained. In paragraph 67 following has been laid down:
“67....However, in determining whether the personal information retained by the authorities involves any of the privatelife aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, 4951, and Peck v. The United Kingdom, cited above, 59).”
177. Following was laid down in paragraph 73 & 77:
“73. Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Aman cited above,
69).
77. In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an 156 interference with the applicants’ right to respect for their private lives, within the meaning of Article 8(1) of the Convention.”
178. The Court also considered the issue of retention of fingerprints, and held that retention of fingerprints may also give rise to important private life concerns. The Court also held that the domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of Article 8. Following was held in paragraph 103:
“103. The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see mutatis mutandis, Z., cited above, 95). The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no 157 longer than is required for the purpose for which those data are stored.”
179. United Kingdom Supreme Court had occasion to consider the issue of retention of data in Regina (Catt) v. Association of Chief Police Officers of England, Wales and Northern Ireland and another,(2015) 2 WLR 664 – (2015) UKSC 9. The UK Supreme Court in the above case also noticed the judgment of Strasbourg in S. and Marper v. The United Kingdom. The appeal before UK Supreme Court was concerned with the systematic collection retention by police authorities of electronic data about individuals and whether it is contrary to Article 8 of the European Convention. The appellant before the Court had accepted that it was lawful for the police to make a record of the events in question as they occurred, but contends that the police interfered with their rights under Article 8 of the Convention by thereafter retaining the information on a searchable database. After noticing the jurisprudence of the European Court of Human Rights Lord Sumption stated following in paragraph 33: 158
“33. Although the jurisprudence of the European Court of Human Rights is exacting in treating the systematic storage of personal data as engaging article 8 and requiring justification, it has consistently recognised that (subject always to proportionality) public safety and the prevention and detection of crime will justify it provided that sufficient safeguards exist to ensure that personal information is not retained for longer than is required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties is properly restricted: see Bouchacourt v France, given 17 December 2009, paras 6869, and Brunet v. France (Application No.21010/10) (unreported) given 18 September 2014, para 36. In my opinion, both of these requirements are satisfied in this case. Like any complex system dependent on administrative supervision, the present system is not proof against mistakes. At least in hindsight, it is implicit in the 2012 report of HMIC and the scale on which the database was weeded out over the next two years that the police may have been retaining more records than the Code of Practice and the MOPI guidelines really required. But the judicial and administrative procedures for addressing this are effective, as the facts disclosed on this appeal suggest.”
180. The preponderance of authorities on the subject of retention of data is that retention of personal data effecting personal life of an individual may interfere in his right of privacy and the State can justify its retention subject to proportionality and 159 subject to there being sufficient safeguards to personal information is not retained for longer than it required.
181. Reverting back to the Aadhaar Act, it is clear that requesting entity as well as authority are required to retain authentication data for a particular period and thereafter it will be archived for five years and thereafter authentication data transaction shall be deleted except such data which is required by the Court in connection with any pending dispute. We had already noticed that data which is retained by the entity and authority for certain period is minimal information pertaining to identity authentication only no other personal data is retained. Thus, provisions of Aadhaar Act and Regulations made thereunder fulfill three fold test as laid down in Puttaswamy case (supra), hence, we conclude that storage and retention of data does not violate fundamental right of privacy.
160
182. Now, we come to issue of surveillance, which has been very strongly raised by petitioners. Shri Shyam Divan, learned counsel for the petitioners has relied on judgment of U.S. Supreme Court in United States Vs. Antoine Jones, 132 S.Ct. 945 (2012). Antoine Jones, owner and operator of a nightclub was under suspicion of trafficking in narcotics. A warrant was issued authorising installation of an electronic tracking device on the jeep registered in the name of John's wife. Agents installed a GPS tracking device in the jeep when it was parked in a public parking. On the basis of data obtained from the device, the Government charged Jones for several offences. In trial, Jones found a locational data obtained form the GPS device. A verdict of guilt was returned, which on appeal was reversed by United States, Appeal for District Columbia.
183. Matter was taken to the U.S. Supreme Court. Fourth Amendment provides “the right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, 161 shall not be violated.” Justice Scalia, delivering the opinion of the Court affirmed the judgment of Court of Appeal. Justice Sotomayor concurring wrote: “I join the Court's opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Ante, at 950, n. 3. In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones' Jeep without a valid warrant and without Jones' consent, then used that device to monitor the Jeep's movements over the course of four weeks. The Government usurped Jones' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States, 365 U. S. 505, 511512 S1 S.Ct. 679, 5 L.Ed.2d 734 (1961). ”
184. The above case was a case where tracking device, i.e., GPS was installed in the vehicle with purpose and motive of surveillance and obtaining data to be used against Jones. Present is not a case where it can be said that Aadhaar infrastructure is designed in a manner as to put a surveillance on Aadhaar number holder (ANH).
162
185. Another judgment which is relied by Shri Shyam Divan is judgment of European Court of Human Rights in Strasbourg Court in Roman Zakharov Vs. Russia decided on 04.12.2015. In the above case, the applicant alleged that the system of secret interception of mobile telephone communications in Russia violated his right to respect for his private life and correspondence and that he did not have any effective remedy in that respect. In Para 148 of the judgment, the case of the applicant was noted in the following words: “148. The applicant complained that the system of covert interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, 163 or for the protection of the rights and freedoms of others.”
186. The Court came to the following conclusion: "175. The Court notes that the contested legislation institutes a system of secret surveillance under which any person using mobile telephone services of Russia providers can have his or her mobile telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile telephone services.”
187. The Strasbourg Court held that there had been violation of Article 8 of the Convention. The above case also does not help the petitioners in reference to Aadhaar structure. Above case was a clear case of surveillance by interception of mobile telecommunication.
188. Another judgment relied by Shri Shyam Divan is Digital Rights Ireland Ltd. Vs. Minister for Communications, Marine and Natural Resources decided on 08.04.2014. Para 1 of the judgment notice: "These requests for a preliminary ruling concern the validity of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data 164 generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC(OJ 2006 L 105, p. 54).”
189. Directive 2006/24 laid down the obligation on the providers of publicly available electronic communications services or of public communications networks to retain certain data which are generated or processed by them. Noticing various articles of the Directives, the Court in Paragraph 27 noted: “27. Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”
190. The directives were held to be violating the principles of proportionality. The above case was also a case of retaining data pertaining to communications by service providers. The retention of communication data is a clear case of intrusion in privacy. The above is also a case which in no manner 165 help the petitioners when contrasted with the Aadhaar architecture.
191. At this juncture, we may also notice one submission raised by the petitioners that Aadhaar Act could have devised a less intrusive measure/means. It was suggested that for identity purpose, the Government could have devised issuance of a smart card, which may have contained a biometric information and retain it in the card itself, which would not have begged the question of sharing or transfer of the data. We have to examine the Aadhaar Act as it exists. It is not the Court's arena to enter into the issue as to debate on any alternative mechanism, which according to the petitioners would have been better. Framing a legislative policy and providing a mechanism for implementing the legislative policy is the legislative domain in which Court seldom trench.
192. We may refer to a judgment of U.K. Supreme Court AB Vs. Her Majesty's Advocate, [2017] UKSC 25, where U.K. Supreme Court has not approved the arguments 166 based on less intrusive means. Court held that whether the Parliament would have used a less intrusive means does not involve the Court in identifying an alternative measure, which is least intrusive. In Para 37, following has been laid down: “37. I am not persuaded. It is important to recall that the question of whether the Parliament could have used a less intrusive measure does not involve the court in identifying the alternative measure which is least intrusive. The court allows the legislature a margin of discretion and asks whether the limitation on the article 8 right is one which it was reasonable for the Parliament to propose: Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2014] AC 700, para 75 per Lord Reed; Animal Defenders International v United Kingdom (2013) 57 EHRR 21, para 110. Had the 2009 Act provided that the reasonable belief defence would not be available if on an earlier occasion the accused had been charged with an offence which itself objectively entailed a warning of the illegality of consensual sexual activity with older children, the fact that there were other options, which were less intrusive, to restrict the availability of that defence would not cause an infringement of the individual's article 8 right. The problem for the Lord Advocate in this appeal is where to find such a warning. ”
193. We may profitably note the judgment of Privy Council arising from a decision of Supreme Court of 167 Mauritius – Madhewoo Vs. State of Mauritius. The case relates to a national identity card, which was brought in effect by an Act namely, the National Identity Card Act, 1985 providing for adult citizens of Mauritius to carry identity cards. The Act was amended in 2013 by which Government introduced a new smart identity card, which incorporates on a chip on the citizen's fingerprints and other biometric information relating to his/her characteristics. A citizen of the Republic of Mauritius did not apply for National Identity Card and he challenged the validity of the 2013 Act. The Supreme Court of Mauritius held that the provisions of 1985 Act, which enforce the compulsory taking and recording of fingerprints of a citizen disclosed an interference with the appellant’s rights guaranteed under Section 9(1) of the Constitution. The Section 9(1) provided “except with his own consent, no person shall be subject to the search of his person or his private or the entry by others in his premises.” Supreme Court had rejected the challenge to the other provisions of the 168 Constitution. Matter was taken to the Privy Council. The challenge made before the Privy Council was noticed in Para 7 of the judgment, which is to the following effect: “7. In this appeal the appellant challenges the constitutionality of (a) the obligation to provide fingerprints and other biometric information under section 4, (b) the storage of that material on the identity card under section 5, (c) the compulsory production of an identity card to a policeman under section 7(1A) in response to a request under section 7(1)(b), and (d) the gravity of the potential penalties under section 9(3) for non compliance. He claims, first, that the implementation of the new biometric identity card is in breach of sections 1, 2, 3, 4, 5, 7, 9, 15, 16 and 45 of the Constitution coupled with article 22 of the Civil Code (which provides that everyone has the right to respect for his private life and empowers courts with competent jurisdiction to prevent or end a violation of privacy) and, secondly, that the collection and permanent storage of personal biometric data, including fingerprints, on the identity card are in breach of those sections of the Constitution and that article of the Civil Code. ”
194. The Privy Council agreed with the decision of the Supreme Court that compulsory taking of fingerprints and the extraction of minutiae involved an interference with the appellant’s Section 9 rights 169 which required to be justified under Section 9(2). The challenge raised before the Privy Council has been noticed in Para 25, which challenges were repelled. Paras 25 and 26 are as follows: “25. The appellant challenges the Supreme Court’s evaluation because, he submits, the creation of a reliable identity card system does not justify the interference with his fundamental rights. He submits that the obligation to provide his fingerprints interferes with his right to be presumed innocent and also that an innocuous failure to comply with section 4(2)(c) could give rise to draconian penalties under section 9(3) of the Act (para 6 above). He also points out that in India a proposal for a biometric identity card was held to be unconstitutional, and, in the United Kingdom, libertarian political opposition resulted in the repeal of legislation to introduce biometric identity cards. The interference, he submits, is disproportionate.
26. In the Board’s view, these challenges do not undermine the Supreme Court’s assessment. First, the requirement to provide fingerprints for an identity card does not give rise to any inference of criminality as it is a requirement imposed on all adult citizens. It is true that, if circumstances arose in which a police officer was empowered to require the appellant to produce his identity card and the government had issued card readers, the authorities would have access to his fingerprint minutiae which they could use for the purposes of identification in a criminal investigation. But that does not alter the presumption of innocence.
170Secondly, the penalties in section 9(3) are maxima for offences, including those in section 9(1), which cover serious offences such as forgery and fraudulent behaviour in relation to identity cards. The subsection does not mandate the imposition of the maximum sentence for any behaviour. Thirdly, while judicial rulings on international instruments and the constitutions of other countries can often provide assistance to a court in interpreting the provisions protecting fundamental rights and freedoms in its own constitution, the degree of such assistance will depend on the extent to which the documents are similarly worded. ”
195. As noticed above, learned counsel for the petitioners has raised various issues pertaining to security and safety of data and CIDR. Apprehensions raised by the petitioners does not furnish any ground to struck down the enactment or a legislative policy. This Court in G. Sundarrajan Vs. Union of India and Others. (2013) 6 SCC 620, had occasion to consider India's National Policy and challenge to a Nuclear Project, which was launched by the Government upholding the legislative policy, the Court laid down following in Paras 15 and 15.1: “15. India's National Policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act.
171National and International policy of the country is to develop control and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP has been set up at Kudankulam as part of the national policy which is discernible from the Preamble of the Act and the provisions contained therein. It is not for Courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute.
15.1. Lord MacNaughten in Vacher & Sons Ltd. v. London Society of Compositors (1913) AC 107 HL has stated:
“......Some people may think the policy of the Act unwise and even dangerous to the community......But a Judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment.
The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.”
196. This Court also held that a project cannot be stopped merely on the ground of apprehension. In the present case, also lot of apprehensions of possibilities of insecurity of data has been raised. In India, there is no specific data protection laws 172 like law in place in United Kingdom. In Privacy judgment – Puttaswamy (supra), this Court has noticed that Shri Krishna Commission is already examining the issue regarding data protection and as has been stated by learned Attorney General before us, after the report is received, the Government will proceed with taking steps for bringing a specific law on data protection. We need not say anything more on the above subject. After we have reserved the judgment, Srikrishna Commission has submitted its report containing a draft Personal Data Protection Bill, 2018 in July 2018. The report having been submitted, we hope that law pertaining to Personal Data Protection shall be in place very soon taking care of several apprehensions expressed by petitioners.
197. The Aadhaar architecture is to be examined in light of the statutory regime as in place. We have noticed the regulations framed under Aadhaar Act, which clearly indicate that regulations brings in place statutory provisions for data protection, restriction on data sharing and other aspects of the 173 matter. Several provisions of penalty on data breach and violation of the provisions of the Act and regulations have been provided.
198. We have no reason to doubt that the project will be implemented in accordance with the Act and the Regulations and there is no reason to imagine that there will be statutory breaches, which may affect the data security, data protection etc. In view of foregoing discussions, we are of the considered opinion that Statutory regime as delineated by the Aadhaar Act and the Regulations fulfills the three fold test as laid down in Puttaswamy (supra) and the law, i.e. Aadhaar Act gives ample justification for legitimate aim of the Government and the law being proportional to the object envisaged. The petitioners during their submissions have also attacked various provisions of Enrolment and Update Regulations, Authentication Regulations, Data Security Regulations and Sharing of Information Regulations. All the above regulations have been framed in exercise of power under Section 54 of the Act on the matters covered by 174 the Act. We having held that by collection of data, its retention, storage, use and sharing, no Privacy Right is breached, we are of the view that related regulations also pass the muster of threefold tests as laid down in K.Puttaswamy case. The provisions of Act in the above regard having passed the muster of threefold tests, the related regulations also cannot be held to breach Right of Privacy. Thus, challenge to regulations relating to collection, storage, use, retention and sharing fails and it is held that they do not violate Constitutional Rights of Privacy. In result, we answer the Issue Nos. 3, 4 and 5 in following manner: Ans. 3, 4, 5:
(i) Collection of data, its storage and use does not violate fundamental Right of Privacy.
(ii) Aadhaar Act does not create an architecture for pervasive surveillance.
(iii) Aadhaar Act and Regulations provides protection and safety of the data received 175 from individuals.
Whether Section 7 OF Aadhaar Act is Issue Nos. unconstitutional?
6 and 7 Whether right to food, shelter etc. envisaged under Article 21 shall take precedence on the right to privacy of the beneficiaries?
199. Shri Pandit Jawahar Lal Nehru while concluding debate on “Aims and Objects Resolution” on 22.01.1947 in the Constituent Assembly of India stated:
“The first task of this Assembly is to free India through a new constitution to feed the starving people and cloth the naked masses and to give every Indian fullest opportunity to develop himself according to his capacity. This is certainly a great task.”
200. After attaining the freedom the country proceeded to realise the dream and vision which founding fathers of our democratic system envisaged. The Constitution of India apart from enumerating various Fundamental Rights including right to life has provided for Directive Principles of State Policy under Chapter IV of the Constitution which was to find objectives in 176 governess of the country. Article 38 provided that State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. It further provided that the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
201. After enforcement of the Constitution almost all the Governments worked towards the object of elimination of poverty and to empower marginal/poor section of the society. The endeavour of the Government was always to frame policies keeping in view the “little Indian” who is in the centre of all policies and governance.
202. Section 7 of the Aadhaar Act is the most important provision of the Aadhaar Act around which 177 entire architecture of Aadhaar Act has been built. Section 7 is to the following effect:
“7. The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment: Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service.”
203. The objects and reasons of the Act as noticed above as well as the Preamble of the Act focus on targeted delivery of financial and other subsidies, benefits and services which are envisaged in Section
7. The petitioners challenge the constitutionality of Section 7. They submit that Section 7 seeks to render the constitutional and statutory obligations of the State to provide benefits, subsidies and services, conditional upon an individual parting with his or her 178 biometric and demographic information. An individual’s rights and entitlements cannot be made dependent upon an invasion of his or her bodily integrity and his or her private information which the individual may not be willing to share with the State. The bargain underlying Section 7 is an unconscionable, unconstitutional bargain. An individual has constitutional right to receive benefits, subsidies and services which is fundamental right and it is State’s obligation to provide for fulfillment of that fundamental right. He submitted that there is no rationale in enactment of Section 7 neither there was any legitimate state interest nor the provision is proportionate. The petitioners submit that provision of requiring every person to undergo authentication to avail benefits/services/ entitlements, falls foul of Article 14. Since, firstly such mandatory authentication has caused, and continues to cause, exclusion of the most marginalised section of society; and secondly this exclusion is not simply a question of poor implementation that can be administratively 179 resolved, but stems from the very design of the Act. Learned counsel for the petitioners have referred to and relied on several materials in support of their submissions that working of Section 7 has caused exclusion. Since a large number of persons who are entitled to receive benefits, subsidies and services are unable to get it due to not being able to authenticate due to various reasons like old age, change of biometric and other reasons. The petitioners have referred to affidavits filed by several individuals and NGOs who after field verification brought materials before this Court to support their submission regarding large scale exclusion. It is further contended that State’s contention that Circular dated 24.10.2017 has resolved implementation issued cannot be accepted. The authentication system in the Aadhaar Act is probabilistic. Biometric technology does not guarantee 100% accuracy and it is fallible, refers UIDAI’s own Report on “Role of Biometric Technology in Aadhaar Entrolment” (2012) has been made where Report stated that biometric accuracy 180 after accounting for the biometric failure to enrol rate, false positive identification rate, and false negative identification rate, was 99.768% accuracy. For a population over 119.22 crore enrolled in Aadhaar, it is a shocking admission of the fact that there are 27.65 lakh people who are excluded from benefits linked to Aadhaar. It is contended that validity of an act is to be judged not by its object or form, but by its effect on fundamental rights. Mandatory authentication at the point of use violates Article 21. It is contended that the Government has failed to discharge its burden of proof under Article
21. The State has also failed to satisfy the test of proportionality which makes Section 7 unconstitutional.
204. The petitioners further submit that the claim of the Government that by Aadhaar authentication the State has been able to save 11 billion per annum is incorrect and without any basis. It is further submitted that massive savings under Mahatma Gandhi National Rural Employment Guarantee Scheme under 181 Financial Benefits Accrued on account for DBT/Aadhaar since 2014 claims of substantial savings upto 201516 the amount of reported savings is shown as Rs.3000 crores and upto 201617 it is shown as Rs.11,741 crores. Referring to the claim of the Government that he submitted facts of job cards could be only 67,637 were found to be job cards linked to more than one Aadhaar number. Thus, maximum saving for this period would be 127.88 crores compared to the inflated figure of Rs.3000 crores. The Financial Benefits claimed under PAHAL scheme was Rs.14,672 crores which is not correct. Referring to Comptroller and Auditor General Report, it is pointed out that with respect to 2014 15, the real outcome of savings is only 1.33 crores. He submits that major saving was on account of decrease in offtake of domestic subsidised cylinders of consumer and decrease in fuel prices. On Public Distribution System referring to answer to a question in Lok Sabha on 26.07.2016 it is submitted that the Minister of Consumer Affairs, Food and Public 182 Distribution has stated only that approximately 2.33 crores ration cards were deleted during 20132016.
205. Learned Attorney General has referred to material on record to justify the legitimate state aim which led to enactment of Section 7. Learned Attorney General refers to Report No.3 of 2000 of the Comptroller and Auditor General of India which has been brought on record as Annexure RI to the common additional affidavit on behalf of respondents. He submits that the Comptroller and Auditor General in his Report states that 1.93 crore bogus ration cards were found to be in circulation in 13 States. Report further states that a signification portion of the subsidised foodgrains and other essential commodities did not reach the beneficiaries due to their diversion in the open market. The Performance Report of the Planning Commission of India titled “Performance Evaluation Report of Targeted Public Distribution System (TPDS)” dated March, 2005 which has been brought on record as AnnexureR6 to the 183 common additional affidavit on behalf of respondents notes following:
i. Statewise figure of excess Ration Cards in various states and the existence of over 1.52 crore excess Ration Cards issued [Page 362 of CAA] ii. Exercise of fictitious households and identification errors leading to exclusion of genuine beneficiaries.
iii. Leakage through ghost BPL Ration Cards found to be prevalent in almost all the states under study.[Pg. 369 of CAA) iv. The Leakage of food grains through ghost cards has been tabulated and the percentage of such leakage on an All India basis has been estimated at 16.67% [Pg.370 of CAA].
v. It is concluded that a large part of the subsidised food grains were not reaching the target group.
206. Similar reports regarding few subsidies have been referred and relied.
207. Learned Attorney General has also relied on the 184 report submitted by V.V. Giri National Labour Institute and sponsored by the Department of Rural Development, Ministry of Rural Development, Government of India which examined various aspects of National Rural Employment Guarantee Scheme while studying the schedule of rates for National Rural Employment Guarantee Scheme. In paragraph 12.8 (Annesure R4) to the common additional affidavit on behalf of respondents following has been stated:
2. “There was great fraud in making fake cards, muster rolls were not maintained properly, and work was not provided to job seekers sometimes. In many cases, it was found that workers performed one day’s job, but their attendance was put for 33 days. The workers got money for one day while wages for 32 days were misappropriated by the people associated with the functioning of NREGS.”
208. Another report dated 09.11.2012 of National Institute of Public Finance and Policy’s “A Cost benefit analysis of Aadhaar” estimated that a leakage of approximately 12 percent is being caused to the Government on account of ghost workers and manipulated muster rolls. Thirteenth Finance Commission Report for<PHONE_NUMBER>5 dated December, 2000 in Chapter 12 states:
“creation of a biometricbased unique identity for all residents in the country has the potential to address need of the government to ensure that only eligible persons are provided subsidies and benefits and that all eligible persons are covered.”
209. Various other reports have been referred to and relied by Learned Attorney General to substantiate his case that there was large leakage and pilferation of subsidies which were allocated by the Government under different schemes.
210. This Court had occasion to consider public distribution system in PUCL vs. Union of India, (2011) 14 SCC 331, the Court noticed the report of High Powered Committee headed by Justice D.P. Wadhwa, retired Judge of this Court who had submitted report on the Public Distribution System. One of the actions suggested by the Committee was noticed in paragraphs 2 and 12 , Component II:
“2. In order to implement this system across the country, the following actions are suggested by the Committee:
… … … 186 Component II: Electronic authentication of delivery and payments at the fair price shop level. In order to ensure that each cardholder is getting his due entitlement, computerisation has to reach literally every doorstep and this could take long. Moreover, several States have already started implementing smart cards, food coupons, etc. which have not been entirely successful. Reengineering these legacy systems and replacing it with the online Aadhaar authentication at the time of foodgrain delivery will take time. This is therefore proposed as Component II.
12. As far as possible, the State Governments should be directed to link the process of computerisation of Component 2 with Aadhaar registration. This will help in streamlining the process of biometric collection as well as authentication. The States/UTs may be encouraged to include the PDs related KYR+ field in the data collection exercise being undertaken by various Registrars across the country as part of the UID (Aadhaar) enrolment.”
211. This Court again in the same proceeding passed another judgment on 16.03.2012 PUCL vs. Union of India, (2013) 14 SCC 368 in which following was stated in paragraphs 2 and 4:
“2. There seems to be a general consensus that computerisation is going to help the public distribution system in the country in a big way. In the affidavit it is stated that the Department of Food and Public Distribution has been pursuing the States to 187 undertake special drive to eliminate bogus/duplicate ration cards and as a result, 209.55 lakh ration cards have been eliminated since 2006 and the annual saving of foodgrain subsidy has worked out to about Rs 8200 crores per annum. It is further mentioned in the affidavit that endtoend computerisation of public distribution system comprises creation and management of digitised beneficiary database including biometric identification of the beneficiaries, supply chain management of TPDS commodities till fair price shops.
4. In the affidavit it is further mentioned that the Government of India has set up a task force under the Chairmanship of Mr Nandan Nilekani, Chairman, UIDAI, to recommend, amongst others, an IT strategy for the public distribution system. We request Mr Nandan Nilekani to suggest us ways and means by which computerisation process of the public distribution system can be expedited. Let a brief report/affidavit be filed by Mr Nandan Nilekani within four weeks from today.”
212. As noted above the figures as claimed by the respondents regarding benefits after implementation of Aadhaar scheme in the MGNREGA and PDS etc. are refuted by the petitioners. Petitioners’ case is that amounts of savings which are claimed are not correct and at best there was only meager benefit of savings from the implementation of the scheme. We need not to enter 188 into the issue regarding respective claims in the above regard. The reasons which led to enactment of Section 7 that benefits and subsidies are substantially diverted and are not able to reach have been made out even if saving were not substantial but meager.
213. The report and material which have been brought on record by the Government fully demonstrate the legitimate aim of the State in enacting Section 7.
This Court in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and others, 1981 (1) SCC 608, while elaborating on right of life under Article 21, held that the right to life includes the right to live with dignity and all that goes along with it namely the bar necessaries of life such as adequate nutrition, clothing and shelter.
214. The United Nation under Universal Declaration of Human Rights also acknowledges everyone has a right to standard of living which includes food, clothing, housing and medical care. Article 25 of the Declaration which was made in 1948 is as follows: 189
“25.1 Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
215. The English author, JOHN BERGER said:
“The poverty of our century is unlike that of any other. It is not, as poverty was before, the result of natural scarcity, but of a set of priorities imposed upon the rest of the world by the rich. Consequently, the modern poor are not pitied...but written off as trash.”
216. The identification of the poor, as was referred by John Berger is the first step to realise the UN Declaration of Human Rights as well as the Fundamental Rights guaranteed under the Constitution of India. The Aadhaar Act brings into existence a process of identification which is more accurate as compared to other identity proofs.
190
217. At this stage, we need to notice one more submission which was raised by the learned Attorney General. It has been submitted by the learned Attorney General that subsidies and benefits under Section 7 of the Aadhaar Act are traceable to Article 21. It is submitted that if the rights which are sought to be realised by means of Section 7 are juxtaposed against the right of privacy, the former will prevail over the latter. The issue is as to whether the State by enlivening right to food and shelter envisaged under Article 21 encroach upon the right of privacy ? There cannot be a denial that there may be inter se conflict between fundamental rights recognised by the Constitution in reference to a particular person. The Court has to strive a balance to leave enough space for exercise of both the fundamental rights.
218. It cannot be accepted that while balancing the fundamental rights one right has to be given preference. We may notice that privacy judgment i.e. Puttaswamy case has noticed and already rejected 191 this argument raised by the learned Attorney General in paragraph 266 in the following words:
“266. The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socioeconomic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic wellbeing has been utilised through history to wreak the most egregious violations of human rights....”
219. One of the submissions which has been raised by the petitioners targeting the Aadhaar authentication is that biometric system under the Aadhaar architecture is probabilistic. Biometric technology does not guarantee 100% accuracy and it is fallible, with inevitable false positives and false negatives that are design flaws of such a probabilistic system. We have noted above the reliance 192 on UIDAI’s Report of the year 2012 where UIDAI itself has claimed that biometric accuracy was 99.768%. The petitioner is still criticising that since .232% failures are there which comes to 27.65 lakh people who are excluded from benefits linked to Aadhaar. The above submission of the petitioner ignores one aspect of the matter as has been contended by the respondents that in case where there is biometric mismatch of a person even possession of an Aadhaar number is treated sufficient for delivery of subsidies and benefits. Thus, physical possession of Aadhaar card itself may mitigate biometric mismatch. However, in case of mis match instruments are there to accept other proof of identity, the respondents have referred to Circular dated 24.10.2017 issued by UIDAI. The Circular dated 24.10.2017 has been criticised by the petitioners stating that violation of right cannot be left to vagaries of administration. There cannot be any dispute to the above propositions. It is the obligation of the State to ensure that there is no violation of fundamental rights of a person. Section 7 193 is an enabling provision which empowers the State Government to require that such individual undergo authentication for receipt of a subsidy, benefit or service but neither Section 7 nor orders issued by the Central Government and State Government can be read that in the event authentication of a person or beneficiary fails, he is not to be provided the subsidies and benefits or services. The provision is couched as an enabling provision but it cannot be read as a provision to negate giving subsidies, benefits or services in the event of failure of authentication. We are of the view that Circular dated 24.10.2017 which fills a gap and is a direction facilitating delivery of benefits and subsidies does not breach by provisions of the Act.
220. Now, we come to arguments of exclusion as advanced by the petitioners in support of their submission that exclusion makes Section 7 arbitrary and violative of Articles 14 and 21. From the material brought on record by the parties, we have no reason to doubt that there has been denial to few persons due to 194 failure of authentication. There is ample material on record to indicate that prior to enforcement of Aadhaar Scheme there had been large number of denial of benefits and subsidies to real beneficiaries due to several reasons as noted above. Functioning of scheme formulated by the Government for delivery of benefits and subsidies to deserving persons is a large scale scheme running into every nook and corner of the country. When such scheme of Government is implemented, it is not uncommon that there may be shortcomings and some denial. There is no material on record to indicate that as compared to nonreceipt of eligible beneficiaries prior to enforcement of the Act, there is increase of failure after the implementation of the Act. It cannot be accepted that few cases of exclusion as pointed out by the petitioners makes Section 7 itself arbitrary and violative of Articles 14 and 21. Pitfalls and shortcomings are to remove from every system and it has been fairly submitted by the learned Attorney General as well as learned counsel for the UIDAI that 195 as and when difficulties in implementation and cases of denial are brought into the notice, remedial measures are taken. The respondents are still ready to take such remedial measures to ensure that there is no denial of subsidies to deserving persons. We, however, are of the view that denial of delivery of benefits and subsidies to deserving persons is a serious concern and violation of the rights of the persons concerned. It has to be tackled at all level and the administration has to gear up itself and implementation authority has to gear up itself to ensure that rightful beneficiaries are not denied the constitutional benefits which have been recognised and which are being implemented by the different schemes of the Government. Both the Government and UIDAI are fully empowered to make Rules and Regulations under Sections 53 and 54 of the Aadhaar Act respectively and exclusions have to be taken care by exercising the power under Section 53 by the Central Government and under Section 54 by the UIDAI to remedy such shortcomings and denial. We are sure that both the 196 Central Government and UIDAI shall advert to the exclusionary factors.
221. We may also notice a judgment of the US Supreme Court in Otis R. Bowen, Secretary of Health and Human Services, et al. vs. Stephen J. Roy et al., 476 US 693 (1986). The US Supreme Court held that statutory requirement that a state agency utilise Social Security numbers in administering the programs in question does not violate the Free Exercise Clause. The appellants applied and received benefits under the Aid to Families with Dependent Children program and the Food Stamp program. They, however, refused to comply, with the requirement that participants in these programs furnish their state welfare agencies with the Social Security numbers of the members of their household as a condition of receiving benefits. Appellants had contended that obtaining a Social Security number for their 2yearold daughter, would violate their Native American religious beliefs. On refusal to give Social Number, benefits payable to the appellants were terminated. The claim of the 197 appellants was dismissed. The challenge raised by the appellants was noticed in the following words:
“Appellees raise a constitutional challenge to two features of the statutory scheme here.4 They object to Congress' requirement that a state AFDC plan "must . . . provide (A) that, as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number." 42 U.S.C. § 602(a)(25) (emphasis added). They also object to Congress' requirement that "such State agency shall utilize such account numbers . . . in the administration of such plan." Ibid. (emphasis added).5 We analyze each of these contentions, turning to the latter contention first.”
222. The U.S. Supreme Court upheld the requirement of providing of Social Security number. Following has been observed:
“The general governmental interests involved here buttress this conclusion. Governments today grant a broad range of benefits;
inescapably at the same time the administration of complex programs requires certain conditions and restrictions. Although in some situations a mechanism for individual consideration will be created, a policy decision by a government that it wishes to treat all applicants alike and that it does not wish to become involved in casebycase inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial 198 deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants.
The test applied in cases like Wisconsin v. Yoder, U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.17 Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.”
223. Another case of the Appellate Division of the Supreme Court of the State of New York which needs to be noticed is in the matter of Buchanan v. Wing, 664 N.Y. 2d 865. In the above case petitioners were recipients of Aid to Families with Dependent Children, the facts of the case have been noticed in the following words:
199
“Petitioners and their four minor children are recipients of Aid to Families with Department Children (hereinafter ADC) (Social Services Law 343 et seq.) and food stamps from the Broome County Department of Social Services (hereinafter the Department). In February 1996, petitioners received notice from the Department that they were to participate in an identity verification procedure known as the automated finger imaging system (hereinafter AFIS) as a condition of eligibility for benefits required by 18 NYCRR 351.2(a)(245 A.D. 2d
635). Petitioners responded that they would not participate because of their religious convictions. Respondent Commissioner of the Department thereafter discontinued their ADC and food stamp entitlements for failure to comply.”
224. The petitioners refused to participate in an identify verification by procedure known as automated finger imaging system which was a condition of eligibility for benefits. Upholding the process of verification by finger imaging following was laid down:
“We have examined petitioners’ constitutional claims and find them to be without merit. In our view, petitioners’ failure to articulate a viable claim that they are being required to participate in an invasive procedure that is prohibited by their religious beliefs is dispositive of their arguments claiming a violation of their freedom to exercise their religion pursuant to the Federal and State 200 Constitutions (US Const 1st Amend; NY Const, art I, 3). We are also unpersuaded by petitioners’ contention that the Department violated NY Constitution, article XVII, 1 (which provides that aid and care of the needy are public concerns and shall be provided by the State) by discontinuing their public assistance benefits. Since petitioners cannot be classified as needy until such time as they are finger imaged to determine whether they are receiving duplicate benefits, no violation of this constitutional provision has been stated. Moreover, contrary to petitioners’ arguments, the discontinuance of public assistance to their entire family unit (see, 18 NYCRR 352.30)(245 A.D. 2d 637) does not infringe the constitutional rights of their children (who are not named petitioners in light of valid legislation premising the eligibility of the children within the family unit upon the eligibility of the entire household (see, Matter of Jessup v D’Elia, 69 N.Y. 2d 1030).”
225. Another judgment which has been relied by the respondents is Doris McElrath v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, 615 F.2d 434. Under Social Security Act, 1935, a public assistance program of federal and state cooperation providing financial aid to needy dependent children and the parents or relatives with whom they reside, one of the conditions which was added so that as a condition of eligibility under the plan, each 201 applicant for or recipient of aid shall furnish to the State agency his social security account number. The contention of the appellant was noticed in paragraph 11 which is to the following effect:
“[11] The appellants' principal contention on appeal is that the federal and state regulations requiring dependent children to acquire and submit social security account numbers as a condition of eligibility for AFDC benefits are statutorily invalid as being inconsistent with and not authorized by the Social Security Act. We find the arguments advanced in support of this contention to be without merit and hold that the challenged regulations constitute a legitimate condition of eligibility mandated by the Congress under the Social Security Act. Accord, Chambers v. Klein, 419 F. Supp. 569 (D.N.J. 1976), aff'd mem., 564 F.2d 89 (3d Cir. 1977); Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978); Arthur v. Department of Social and Health Services, 19 Wn. App. 542, 576 P.2d 921 (1978). We therefore conclude that the district court properly dismissed the appellants' statutory invalidity allegations for failure to state a claim upon which relief could be granted.”
226. The appellant had also contended that disclosure of social security account number violates their constitutional rights to privacy. Said argument was 202 rejected. While rejecting the argument following was stated in paragraph 20:
“[20] Finally, the appellants maintain that the social security account number disclosure requirement violates their constitutional rights to privacy and to equal protection of the law. We disagree. The constitutional guarantee of the right to privacy embodies only those personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty." Roe v. Wade, : 410 U.S.
113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). It is equally wellsettled that "[w]elfare benefits are not a fundamental right . . . ." Lavine v. Milne, 424 U.S. 577, 584, n. 9, 96 S.Ct. 1010, 1015, 47 L.Ed.2d 249 (1976). Accordingly, we regard the decision of Mrs. McElrath whether or not to obtain social security account numbers for her two minor children in order to receive welfare benefits as involving neither a fundamental right nor a right implicit in the concept of ordered liberty. Chambers v.
Klein, 419 F. Supp. 569, 583 (D.N.J. 1976), aff'd mem. 564 F.2d 89 (3d Cir. 1977). This case is not concerned with a decision impacting the privacy of the appellants on the magnitude of criminal sanctions or an absolute prohibition on the appellants' conduct. See, e. g., Griswold v. Connecticut, : 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.652d 510 (1965); Eisenstadt v. Baird,: 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Rather, it is concerned with a condition of AFDC eligibility and the only sanction for not complying is to forego certain governmental benefits. Simply stated, the claim of the appellants to receive welfare benefits on their own informational terms does not rise to the level of a 203 constitutional guarantee. Moreover, the contention that disclosure of one's social security account number violates the right to privacy has been consistently rejected in other related contexts. See, e.g., Cantor v. Supreme Court of Pennsylvania, 353 F. Supp. 1307, 132122 (E.D.Pa. 1973); Conant v. Hill, 326 F. Supp. 25, 26 (E.D.Va. 1971).”
227. The trends of judgments as noted above do indicate that condition for identification or disclosing particular identity number for receiving a benefit from State does not violate any of the Constitutional rights. We, thus, find that Section 7 fulfills the three fold tests as laid down in Puttaswamy case.
228. Shri Gopal Subramanium relying on Article 243G and Eleventh Schedule of the Constitution submits that Aadhaar Scheme and its authentication for benefits, subsidies and services militate against the above Constitution provision and hence are ultra vires to the Constitution. Article 243G deals with powers, authority and responsibilities of Panchayats, which is to the following effect: 204 243G. Powers, authority and responsibilities of Panchayats: Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of selfgovernment and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
229. Article 243G(b) refers to Eleventh Schedule to the Constitution. Eleventh Schedule contains list of several matters. Shri Subramanium relies on Item No. 11, 12, 16, 17, 23, 25 and 28, which are as under:
11. Drinking Water.
12. Fuel and Fodder.
16. Poverty alleviation programme.
17. Education, including primary and secondary schools.
205
23. Health and Sanitation, including hospitals, primary health centres and dispensaries.
25. Women and child development.
28. Public distribution system.
230. Article 243G is an enabling provision, which enable the State Legislature, by law, to endow the Panchayats with such powers and authorities as may be necessary to enable them to function as institutions of self government. The Items on which State, by law, can endow Panchayats in Eleventh Schedule are items to deal with subjects enumerated therein. For example, Item No. 16 deals with Poverty alleviation programme and Item No. 28 deals with Public Distribution System. State is fully competent to make laws to authorise the Panchayats to take over all the matters enumerated in Eleventh Schedule. The question to be considered is as to whether the Aadhaar Act in any manner militate with Constitutional provisions of Article 243G. The Aadhaar Act is an Act enacted by Parliament, which is referable to Entry 97 of List I. The Aadhaar Act has been enacted 206 to provide for efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith. The Act, thus, has been enacted to regulate the expenditure, which is incurred from the Consolidated Fund of India. No conflict between the Aadhaar Act and any law, which may be enacted by State under List II is seen. Even if any conflict is supposed, the Doctrine of Pith and Substance has to be applied to find out nature of two legislations. In Pith and Substance, the Aadhaar Act cannot be said to be entrenching upon any law, which may be made by the State under Item No.5 of List II. In this context, reference is made to judgment of this Court in State of Uttar Pradesh and Another Vs. Zila Parishad, Ghaziabad and Another, (2013) 11 SCC 783. In the above case, provisions of Article 243G came to be considered in reference to public distribution orders issued by the State Government in exercise of delegated powers under 207 Essential Commodities Act, 1955. The Central Government in exercise of power under Section 3 of the Essential Commodities Act, the Government of U.P. issued an order dated 10.8.1999, conferring the power to allot and cancel the fair price shops in rural areas, with certain guidelines, on the Gram Panchayats. Subsequently, the State Government withdrew that order and reinforced the earlier policy dated 03.07.1990 under which the power was vested with the District Magistrate or an authority designated by him to allot or cancel the licenses for Fair Price Shops. The Central Government, in exercise of power under Section 3 of the Essential Commodities Act, issued an order dated 31.8.2001, wherein its powers were delegated to State Government. State Government, in pursuance thereof, issued an order designating the officers of the District level, viz., District Magistrate, SubDivisional Magistrate, District Supply Officer to ensure the proper supply and distribution of such commodities. Zila Parishad, Ghaziabad filed a Writ Petition in the High Court challenging the Order dated 13.01.2000 by which the power was withdrawn from the Gram 208 Panchayats. The Writ Petition was allowed by the High Court against which State of Uttar Pradesh filed an appeal. The submission was raised before this Court on behalf of the writ petitioner that denuding the power from Panchayats will be against the constitutional provision of Article 243G. Such argument on behalf of petitioner has been noticed in Paragraph 14. This Court after considering the provisions of Article 243G and other relevant provisions has laid down in Paras 23 and 24: “23. The High Court has considered the nature of the aforesaid constitutional provision and held as under: (Zila Panchayat case1, AWC pp. 398182, para 16) “16. In our opinion, this provision is only an enabling provision. It enables the Legislature of a State to endow the Panchayats with certain powers. … Hence, the Legislature of a State is not bound to endow the Panchayats with the powers referred to Article 243G, and it is in its discretion to do so or not. At any event there is no mention of the public distribution system in Article 243G of the Constitution.” Thus, it is evident that the High Court has taken a view that the provision of Article 243G is merely an enabling provision, and it 209 is not a source of legislation. This view seems to be in consonance with the law laid down by this Court in U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj4 wherein an observation has been made that Article 243G is an enabling provision as it enables the Panchayats to function as institutions of selfgovernment. Further, this Court noted that such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relations to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the conditions as may be specified. Therefore, it is for the State Legislature to consider conditions and to make laws accordingly. It is also open to the State to eliminate or modify the same.
24. Therefore, it is apparent that Article 243G read with the Eleventh Schedule is not a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and devolve powers and responsibilities to local bodies by enacting relevant laws. The local bodies can only implement the schemes entrusted to them by the State.”
231. This Court in the above case has reiterated that Article 243G read with Eleventh Schedule is not a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and 210 devolve powers and responsibilities to local bodies by enacting relevant laws. We, thus, are unable to accept the submission of Shri Gopal Subramanium that Aadhaar Act is ultra vires to Article 243G and Eleventh Schedule to the Constitution.
232. One more submission of the petitioners which needs to be considered is regarding probabilistic nature of biometric solution. We proceed on premise that Aadhaar structure is probabilistic, the petitioners themselves have referred to UIDAI Report where biometric accuracy has been stated to be 99.768%. Stephen Hawkin in his book: “God Created The Integers” states:
“Over the centuries, the efforts of these mathematicians have helped the human race to achieve great insight into nature, such as the realisation that the earth is round, that the same force that causes an apple to fall here on earth is also responsible for the motions of the heavenly bodies, that space is finite and not eternal, that time and space are intertwined and warped by matter and energy, and that the future can only be determined probabilistically. Such revolutions in the way we perceive the world have always gone hand in hand with revolutions in mathematical thought. Isaac Newton could never have formulated his laws without the analytic geometry of Rene Descartes and Newton’s own invention of 211 calculus. It is hard to imagine the development of either electrodynamics or quantum theory without the methods of Jean Baptiste Joseph Fourier or the work on calculus and the theory of complex functions pioneered by Carl Friedrich Gauss and Augustin Louis Cauchy and it was Henri Lebesgue’s work on the theory of measure that enabled John von Neumann to formulate the rigorous understanding of quantum theory that we have today. Albert Einstein could not have completed his general theory of relativity had it not been for the geometric ideas of Bernhard Riemann. And practically all of modern science would be far less potent (if it existed at all) without the concepts of probability and statistics pioneered by PierreSimon Laplace.”
233. The science and technology keeps on changing with pace of time. A scientific invention or module which is invented or launched keeps on improving with time. The ready example is improvement in quality and programmes of mobile phone which has seen steep development in the last one decade. Even if authentication under Aadhaar scheme is probabilistic as on date, we have no doubt that the steps will be taken to minimise the misnatch and to attain more accuracy in the result. In view of the foregoing discussion we are of the view that the State has given 212 sufficient justification to uphold the constitutionality of Section 7. We, thus, answer Question Nos.6 and 7 in the following manner:
Ans.6: Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.
Ans.7: The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.
Issue No.8 Whether Section 29 of the Aadhaar Act is liable to be struck down?
234. The ground to challenge Section 29 is that it permits sharing of identity information. It is submitted that sharing of identity information is breach of Right of Privacy. Section 29 is a 213 provision, which contains restrictions on sharing information as is clear from the heading of the section. Section 29 subsection (1) contains prohibition on sharing of any core biometric information collected or created under this Act. Section 29 for ready reference is extracted as below:
29. Restriction on sharing information. (1) No core biometric information, collected or created under this Act, shall be—
(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar numbers and authentication under this Act.
(2) The identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with the provisions of this Act and in such manner as may be specified by regulations.
(3) No identity information available with a requesting entity shall be—
(a) used for any purpose, other than that specified to the individual at the time of submitting any identity information for authentication; or
(b) disclosed further, except with the prior consent of the individual to whom such information relates.
214(4) No Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations.
235. Subsection (2) permits sharing of identity information, other than core biometric information, only in accordance with the provisions of this Act and in such manner as may be specified by regulations. Further subsection (3) prohibits requesting entity to use identity information for any purpose other than that specified to the individual or to disclose any information without the consent of individual. Sub section (4) provides that no Aadhaar number or core biometric information shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations. The attack on Section 29 that it permits sharing of information is thus wholly misconceived. The objective of the Act is to protect the information and privacy of an individual and so the Section is not liable to be struck down on the specious ground that it permits sharing of the 215 information. Further subsection (3) engraft a provision of sharing identity information by requesting entity with consent of the individual. When a person consents about sharing of his identity information, he cannot complain breach of Privacy Right. Petitioners take exception of provision of sub section(2), which permits identity information other than core biometric information to be shared in accordance with the provisions of this Act and in such manner as may be specified by the regulations. When an Act or Regulation regulates and controls sharing of the information, the provision is regulatory and has been engrafted to protect individual's Privacy Right. The Aadhaar (Sharing of Information) Regulations, 2016 again contains in Chapter II Restrictions on sharing of identity information. Regulation 3 is restriction on Authority. Regulation 4 is restriction on requesting entity. Regulation 5 fixes responsibility of any agency or entity other than requesting entity with respect to Aadhaar number. Regulation 6 provides restriction on sharing, circulating or publishing of 216 Aadhaar number.
236. We, thus, conclude that the provision of Section 29 and the Sharing Regulations contains a restriction and cannot be in any manner be held to violate any of the constitutional rights of a person. Objective of the Act is to put restrictions on the sharing information, which also is a legitimate State aim. The provision under Section 29 which permits sharing of identity information except core biometric information in accordance with the Act and Regulations cannot be said to be disproportionate nor unreasonable. Legislature can very well enumerates circumstances and conditions where sharing of information becomes necessary. One of the circumstances where sharing of the information is specifically engrafted in subsection(2) of Section 33, which provides that nothing contained in sub section (3) of Section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a 217 direction of an officer not below the rank of Joint Secretary to the Government of India. Thus, the circumstances which can contemplate for sharing information is reasonable and proportionate. We, thus, held that provisions of Section 29 is constitutional and does not deserves to be struck down. Issue No. 8 is answered in the following manner: Ans.8: Provisions of Section 29 is constitutional and does not deserves to be struck down.
Issue No.9 Whether Section 33 is Constitutional ?
237. Section 33 of the Aadhaar Act, 2016 is as follows:
“33. Disclosure of information in certain cases.(1) Nothing contained in subsection (2) or subsection (5) of section 28 or sub section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge:
Provided that no order by the court under this subsection shall be made without giving an opportunity of hearing to the Authority.218
(2) Nothing contained in subsection (2) or subsection (5) of section 28 and clause (b) of subsection (1), subsection (2) or sub section (3) of section 29 shall apply in respect of any disclosure of information, including identity information records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:
Provided that every direction issued under this subsection, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:
Provided further that any direction issued under this subsection shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.”
238. The first limb of argument of the petitioner is that Section 33 is unconstitutional since it provides for the use of the Aadhaar data base for Police verification which violates the protection against selfincrimination as enshrined under Article 20(3) of the Constitution of India.
219
239. Subsection (1) of Section 33 contains an ample restriction in respect of any disclosure information which can be done only in pursuance of an order of the court not inferior to that of a District Judge. The restriction in disclosure of information is reasonable and has valid justification. The authority whose duty is to safeguard the entire data has to be heard before passing an order by the court which amply protects the interest of a person whose data is to be disclosed. An order of the court not inferior to that of a District Judge for disclosure of information itself is an ample protection to that, for no unreasonable purpose data shall be disclosed. Attacking on subsection (2) of Section 33, it is contended that although
(i)disclosure of information has been permitted in the interest of the national security but there is no definition of national security, (ii) there is no independent oversight disclosure of such data on the ground of security, (iii)the provision is neither fair nor reasonable. Section (2) of Section 33 is disproportionate and unconstitutional.
220
240. Section 33 subsection (2) contains two safeguards. Firstly, disclosure of information is to be made in the interest of national security and secondly, in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government, who is specially authorised in this behalf by an order of the Central Government. National security, thus, has to be determined by a higher officer who is specifically authorised in this behalf. This Court in Ex. Armymen's Protection Services P. Ltd. Vs. Union of India (UOI) and Ors., 2014 (5) SCC 409, has held that what is in the interest of national security is not a question of law but that it is matter of a policy. Following was held in paragraphs 16 and 17:
“16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of State or not. It should be left to the Executive. To quote Lord Hoffman in Secretary of State for the Home Department v. Rehman (2003) 1 AC 153:...in the matter of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether 221 something is or is not in the interest of national security are not a matter for judicial decision. They are entrusted to the executive.
17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.”
241. The International Courts have also dealt the issue. In a case, namely, Census Act(BverfGE 65, 1), judgment of Federal Constitution Court of Germany, judgment dated 11.10.2013, the Court had occasion to consider the case in the context of data processing and protection of individual information against self incrimination and use of their personal data. Dealing with right of information and selfdetermination the Court held that individuals have no right in the sense of absolute, unrestricted control over their data. 222 Following was held by the Court:
“The guarantee of this right to informational selfdetermination” is not entirely unrestricted. Individuals have no right in the sense of absolute, unrestricted control over their data; they are after all human persons who develop within the social Community and are dependent upon communication. Information, even if related to individual persons, represents a reflection of societal reality that cannot be exclusively assigned solely to the parties affected. The Basic Law, as has been emphasized several times in the case law of the Federal Constitutional Court, embodies in negotiating the tension between the individual and the Community a decision in favour of civic participation and civic responsibility(see BverfGE 4, 7 [15] ; 8, 274 [329]; 27, 344 [351 and 352]; 33, 303 [334]; 50, 290 [353]; 56, 37 [49]).
Individuals must therefore in principle accept restriction on their right to informational selfdetermination in the overriding general public interest.”
242. Another judgment of European Commission of Human Rights in M.S. against Sweden was a case that applicant has complained that copies of her medical records containing information on treatment have been forwarded by the clinic without her information to the Insurance Co. The case of the applicant was noticed in paragraph 39 which is to the following effect: 223
“39. The applicant submits that the women’s clinic’s submission of copies of her medical records to the Social Insurance Office without her knowledge or consent interfered with her right to respect for her private life. She maintains that the information contained in these records were of a highly sensitive and private nature. Allegedly, she could not anticipate, when she claimed compensation from the Office, that information on the abortion performed several years after alleged back injury would be forwarded to the Office. She further refers to the fact that the information in question is not protected by the same level of confidentiality at the Office as at the clinic.”
243. The Commission held that information was rightly submitted to the Insurance Co. in accordance with law. It is also relevant to refer the judgment of this Court in People’s Union for Civil Liberties(PUCL) v. Union of India, 1997 (1) SCC 301, where the writ petition was filed under Article 32 alleging serious invasion of an individual’s privacy on the account of Telephonetapping. The Court adverted to the Indian Telegraph Act, 1885 and the Rules framed thereunder. The Court has noticed that Section 5(2) of the Telegraph Act permits the interception of messages in accordance with the said section, “Occurrence of any 224 public emergency” or “in the interest of public safety”. In paragraph 28 following was held:
“28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section.
"Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non. for the application of the provisions of Section 5(2) of the Apt. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.”
244. This Court issued various directions providing for certain safeguards regarding an order for Telephone tapping. Thus, on fulfillment of statutory conditions when telephonic conversation can be intercepted no exception can be taken for disclosure of information in the interest of national security.
245. The power given under Section 33 to disclose information cannot be said to be disproportionate. The disclosure of information in the circumstances 225 mentioned in Section 33 is reasonable and in the public interest.
246. We are satisfied that the provision fulfills three fold test as laid down in Puttaswamy case. There are no grounds to declare Section 33 as unconstitutional.
247. We also need to advert to one of the submissions of the petitioner that permitting disclosure of information for police investigation violates the protection against selfincrimination as provided under Article 20 subclause (3). It is true that under Section 33 the Court may order for disclosure of information even for a police investigation. But information so received in no manner can be said to violate the protection given under Article 20 sub clause (3). The basic information which are with the UIDAI are demographic and biometric information. In this context, reference is made to 11Judge Constitution Bench judgment of this Court in State of Bombay vs. Kathi KALU Oghad, AIR 1961 SC 1808. The 226 Constitution Bench had occasion to consider subclause (3) of Article 20 of the Constitution. In the above case from the accused who was charged under Section 302/34 IPC during the investigation prosecution has obtained three specimen of handwriting which were compared by his handwriting which was part of the evidence. A question was raised as to the admissibility of the specimen of handwriting, it was contended that use of specimen of handwriting violated protection under Article 20(3). This Court in paragraph 16 laid down following:
(16) In view of these considerations, we have come to the following conclusions : (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused 227 person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written Dagduas but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of 228 Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”
248. From what has been held in the above case, it is clear that ‘to be a witness' is not equivalent to 'furnishing evidence' in its widest significance. The use of information retained by the UIDAI given by the order of the Court under Section 33 cannot be said to be violating the protection as contained under Article 20(3). Thus, Article 20(3) is not violated by disclosure of information under Section 33. In view of the foregoing discussion, we hold that Section 33 is constitutional.
249. One of the decisions on which Shri K.V.
Viswanathan has placed reliance in support of his submission regarding violation of Article 20(3) as well as Article 21 of the Constitution is Selvi and others vs. State of Karnataka, 2010(7) SCC 263. In the above case this Court had considered as to whether certain scientific techniques, namely, narcoanalysis, 229 polygraph examination and the Brain Electrical Activation Profile (BEAP)test for the purpose of improving investigation efforts in criminal cases violate subclause (3) of Article 20 as well as Article 21. The legal issues and questions of law have been noted in paragraphs 2 and 11 to the following effect:
“2. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.
11. At this stage, it will be useful to frame the questions of law and outline the relevant subquestions in the following manner:230
I.Whether the involuntary administration of the impugned techniques violates the `right against selfincrimination' enumerated in Article 20(3) of the Constitution?
IA. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?
IB. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)?
II.Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty' as understood in the context of Article 21 of the Constitution? ”
250. After considering large number of cases of this Court as well as judgments rendered by Foreign Courts, a conclusion was recorded that those tests, since they are a means for imparting personal knowledge about relevant facts, hence, they come within the scope of testimonial compulsion thereby attracting the protective shield of Article 20(3). In paragraph 189 following was held:
“189. In light of the preceding 231 discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as `personal testimony', since they are a means for `imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of `testimonial compulsion', thereby attracting the protective shield of Article 20(3). ”
251. In so far as question of violation of Article 21 is concerned, this Court, in paragraphs 225 and 226 has held:
“225. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact'. The theory of interrelationship of rights mandates that the right against selfincrimination should also be read as a component of `personal liberty' under Article 21. Hence, our understanding of the `right to privacy' should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the 232 objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual's decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.
226. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the `right against self incrimination'. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. In order to address such circumstances, it is important to examine some other dimensions of Article 21. ”
252. The nature of tests which were under consideration in the aforesaid case, were elaborately noticed by this Court and the tests were found to be in nature of 233 substantial intrusion in the body and mind of an individual, hence, it was held that they violate Article 20(3) as well as Article 21. It is, however, relevant to notice that this Court in Selvi judgment itself has noticed the distinction in so far as use of fingerprints were concerned. This Court had noticed earlier judgment of State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 with approval. The biometric information that is fingerprints and iris scan can not be equated to the tests which came for consideration in Selvi's case. Hence, the judgment of this Court in Selvi does not in any manner support the case of the petitioners. Answer to question No.3 is in following Manner:
Ans.9: Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be said to violate protection granted under Article 20(3).234
Issue No.10 Whether Section 47 of the Aadhaar Act is Unconstitutional?
253. The Petitioner submits that Section 47 of the Aadhaar Act is unconstitutional since it does not allow an individual who is victim of violation of Aadhaar Act to initiate a criminal process. It is submitted that the person who is victim of an offence under the Aadhaar Act has no remedy to file a complaint and Section 47 of the Act restrict the filing of complaint only by Authorities or Officers or persons authorised by it.
254. The above submission is refuted by the respondent that Section 47 has a rationale. The offences and penalties under Chapter VII of the Aadhaar Act are all intended to maintain the purity and integrity of CIDR and the entire enrolment storage in CIDR and authentication exercise can only be efficiently and effectively handled by UIDAI. Thus, jurisdiction to submit a complaint has been conferred to UIDAI which is the most entrusted entity for maintaining the 235 purity of Aadhaar Scheme and is also affected by offences committed under the Aadhaar Act. Section 47 provides as follows:
“47. Cognizance of Offence (1) No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.
(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act.”
255. Provisions akin to Section 47 are found in most of Statutes which Statutes defines offences under the Statute and provide penalty and punishment thereunder. Following are some of the Statues which contains a provision akin to Section 47 of Aadhaar Act:
“1)Section 22 of Mines and Minerals(Development & Regulation) Act, 1957 – No Court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.
2) Section 34 of the Bureau of Indian Standards Act, 1986 No Court shall take cognizance of an offence punishable under this Act, save on a complaint made by or under the authority of the Government or 236 Bureau or by any officer empowered in this behalf by the Government or the Bureau, or any consumer or any association recognized in this behalf by the Central or State Government.
3) Section 26(1) of SEBI Act, 1992 – No Court shall take cognizance of any offence punishable under this Act or any rules or regulations made thereunder, save on a complaint made by the Board.
4) Section 34 of Telecom Regulatory Authority of India Act, 1997 – No Court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder, save on a complaint made by the Authority.
5) Section 57(1) of Petroleum and Natural gas Regulatory Board Act, 2007 – No Court shall take cognizance of any offence punishable under Chapter IX save on a complaint made by the Board or by any investigating agency directed by the Central Government.
6) Section 47 of Banking Regulation Act, 1949 – No court shall take a cognizance of any offence punishable under subsection (5) of Section 36AA or Section 46 except upon complaint in writing made by an officer of the Reserve Bank or, as the case may be, the National Bank generally or specially authorised in writing in this behalf by the Reserve Bank, or as the case may be, the National Bank and no court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class or any court superior thereto shall try any such offence.
7) Section 19 of Environment (Protection) Act, 1986 – No court shall take cognizance of 237 any offence under this Act except on a complaint made by – (a) the Central Government or any authority or officer authorised in this behalf by that Government, or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.
8) Section 43 of The Air (Prevention and Control of Pollution) Act, 1981 – (1) No Court shall take cognizance of any offence under this Act except on a complaint made by – (a) a Board or any officer authorised in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.”
256. Large number of Special Acts which defines offences under the Act and their penalty contains provision akin to Section 34 of the Aadhaar Act. Special Acts are enacted for serving special objects towards offences under the Act. The initiation and prosecution of offences under the Special Act are kept by the specified authority to keep the initiation and prosecution in the hands of the authorities under the 238 Special Act which acts as deterrent and prosecutions are brought to its logical end. Further, objective of such provisions is to discourage frivolous and vexatious complaints.
257. This Court in Rajkumar Gupta versus Lt.Governor, Delhi and Others, (1997) 1 SCC 556, had occasion to consider Section 34(1) of the Industrial Disputes Act, 1947 and objective behind putting such restriction. Section 34 of Industrial Disputes Act provided that no Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government. Section 34 of Industrial Disputes Act is pari materia with Section 47 of the Aadhaar Act. This Court noticing the objective of Section 34 laid down following in the paragraph 16. The Court held that Section 34 is in the nature of limitation on the entitlement of workman or trade union or an employer to complain of offences under the Act. Following was laid down in paragraph 16:
“ 16. At the same time, the provisions of 239 Section 34 are in the nature of a limitation on the entitlement of a workman or a trade union or an employer to complain of offences under the said Act. They should not, in the public interest, be permitted to make frivolous, vexatious or otherwise patently untenable complaints, and to this end Section 34 requires that no complaint shall be taken cognizance of unless it is made with the authorization of the appropriate Government.”
258. In so far as the submission that there is no forum for a person victim of an offence under Aadhaar Act, suffice to say that Section 47 can be invoked by the authority on its own motion or when it receives a complaint from a victim. The authority i.e. UIDAI has varied powers and functions as enumerated in Section 23 of the Act. It is the authority who is most entrusted in ensuring that the provisions of the Act are implemented in accordance with the Act and offenders should be punished. In so far as remedy of victim is concerned, there are few facts which need to be kept in mind.
259. The Information Technology Act, 2000 defines electronic record in Section 2(t) which is to the following effect: 240 “Section 2(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”
260. The demographic and biometric information which is collected for enrolment of the resident in electronic data as defined in Section 2(t) of Information Technology Act and expressly stated in Section 30 of Aadhaar Act. Chapter 11 of the Information Technology Act defines offences. Section 66C, Section 66D and Section 72 of the Information Technology Act defines offences and provides for penalty, which is to the following effect: “66C. Punishment for identity theft Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
66D. Punishment for cheating by personation by using computer resource Whoever, by means for any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine 241 which may extend to one lakh rupees.
72. Penalty for breach of confidentiality and privacy – Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.”
261. With regard to an offence which falls within the definition of 'offences' a victim can always file complaint or lodge an F.I.R.. Section 46 of the Aadhaar Act clearly provides that the penalties under the Aadhaar Act shall not interfere with other punishments. Section 46 is as follows:
“46. Penalties not to interfere with other punishments. No penalty imposed under this Act shall prevent the imposition of any other penalty or punishment under any other law for the time being in force.”
262. This Court in State (NCT of Delhi) versus Sanjay, (2014) 9 SCC 772, had occasion to consider the 242 provisions of Section 22 of the Mines and Minerals (Development & Regulations) Act, 1957 which provision is similar to Section 47 of the Aadhaar Act. The question arose that whether in case the complaint has not been filed by the authority under Section 22, whether cognizance can be taken of the offence if it falls within definition of any of the offences under the Indian Penal Code. There was divergence of opinions between the different High Courts. This Court after noticing earlier judgments of this Court, laid down following in paragraphs 17 and 73.
“17. Since conflicting views have been taken by the Gujarat High Court, the Delhi High Court, the Kerala High Court, the Calcutta High Court, the Madras High Court and the Jharkhand High Court, and they are in different tones, it is necessary to settle the question involved in these appeals.
73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act visàvis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence Under Section 378 IPC, on receipt of the police report, the 243 Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly. ”
263. The limitation as contained in Section 47 in permitting taking cognizance of any offence punishable under Aadhaar Act only on a complaint made by the authority or any officer or person authorised by it, has legislative purpose and objective, as noticed above. We thus do not find any unconstitutionality in Section 47 of the Aadhaar Act. In view of the foregoing discussions, the answer to Issue No.10 is in following manner: Ans.10: Section 47 of the Aadhaar Act cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process.
244 Issue No. 11 Whether Section 57 of Aadhaar Act is unconstitutional?
264. Section 57 of the Act, which contains a heading “Act not to prevent use of Aadhaar Number for other purposes under law” provides: “57. Act to prevent use of Aadhaar number for other purposes under law. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:
Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.”
265. Attacking the provision of Section 57, petitioners contends that broad and unlimited scope of activities covered under Section 57 and kinds of private entities permitted to use Aadhaar is entirely disproportionate beyond the means and objectives of the Act and without any compelling State interests. There are no procedural safeguards governing the actions of private entities and no remedy for undertaking's failure or service denial. The individual, who wish to be 245 enrolled have given their consent only for Aadhaar subsidies, benefits and services, which cannot be assumed for other purposes. Section 57 has to be struck down on the ground of excessive delegation. “Any purpose” indicates absence of guidelines. Any purpose does not mean all purposes and several aspects of human existence. Section 57 violates all principles of proportionality.
266. Refuting the above submission of the petitioners, the respondents submits that, Section 57 is not an enabling provision, it merely provides as it states that the provisions of the Act would not prevent the use of Aadhaar for other purposes. In fact, Section 57 employs limitation on such user for other purposes, which is engrafted in Proviso to Section 59. The use of Aadhaar having been made subject to procedure and obligations under Section 8 and Chapter VI, the contract must provide for authentication under Section 8 and protection and formulation under Chapter VI also obviously entail the operation of Chapter VII (Offences and Penalties). Section 57 does not have 246 any relation to other laws, which may be made by Parliament, the other laws made by Parliament would have to be tested on their own merits. Section 57 is not a provision enabling the making of a law or rather it is actually a limitation or restriction to law, which may be made with respect to use of Aadhaar number. The apprehension expressed by the petitioners is about the wide extension of use of Aadhaar in private spheres is completely misplaced.
267. One of the grounds of attack of the petitioners to Section 57 is that it is disproportionate and does not satisfy the proportionality test as laid down in Privacy Judgment – Puttaswamy case. Before proceeding further, it becomes necessary to look into the proportionality test, its content and parameters.
268. Patanjali Shastri, Chief Justice, as he then was speaking for a Constitution Bench in State of Madras Vs. V.G. Row, AIR 1952 SC 196, while elaborating the expression reasonable restrictions on the exercise of right as occurring in Clause (5) of Article 19 of the 247 Constitution laid down that reasonable restriction should not be disproportionate. Following was observed in Paragraph 15: “15........It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and selfrestraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.”
269. A Two Judge Bench of this Court in Om Kumar and Others Vs. Union of India, (2001) 2 SCC 386 248 elaborately considered the concept of proportionality in reference to legislative action. This Court held that ever since the principle of proportionality as noted above applied in India, Jagannadha Rao, J. had referred to judgments of Canadian Supreme Court in R v. Oakes (1986) 26 DLR 2001 and has noticed the three important components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, must not only be rationally connected to the objective in the first sense, but should impair as little as possible the right to freedom in question. Thirdly, there must be 'proportionality' between the effects of the measures and the objective.
270. Again, in Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh and Others, (2004) 2 SCC 130, Sinha, J. had elaborately reviewed the principle of proportionality. In Paragraph 46, following has been held: 249 “46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.
271. The most elaborate consideration of the Doctrine of Proportionality was made in Modern Dental College and Research Centre and Others Vs. State of Madhya Pradesh and Others, (2016) 7 SCC 353. The validity of legislation passed by State of Madhya Pradesh Legislature came for consideration. The Court (speaking through Dr. Justice A.K. Sikri, one of us) held that exercise that is required to be undertaken is the balancing of fundamental right and restrictions imposed, which is known as Doctrine of Proportionality. In Paragraph 60, following has been 250 stated: “60. …......... Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as “doctrine of proportionality”. Jurisprudentially, “proportionality” can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub components of proportionality which need to be satisfied, a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation;
and finally
(iv) there needs to be a proper relation (“proportionality stricto 251 sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.”
272. Elaborating the constitutional principles, it was laid down that the Constitution permit constitutional rights to be limited to protect public interests or the rights of others. The conflict between two fundamental aspects, i.e. rights on the one hand and its limitation on the other hand is to be resolved by balancing the two so that they harmoniously co exist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context. What criteria is to be adopted in for a proper balancing has been explained in Paragraphs 63 and 64: “63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is 252 meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v.
Oakees, (1986) 1 SCR 103 (Can SC), in the following words (at p. 138):
“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.
First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of” sufficient importance to warrant overriding a constitutional protected right or freedom … Second … the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test…” Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups.
There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has 253 been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”
64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”
273. The application of Doctrine of Proportionality, while examining validity of the Statute has been accepted in other countries as well. Judgments of the U.S. Supreme Court as well as of United Kingdom, Canadian Supreme Court and Australian Court shows that they have applied proportionality principle while judging a Statute. European Court of Human Rights and other international bodies have recognised the said principle. Privacy judgment in Puttaswamy case has also accepted the proportionality doctrine for judging validity of a Statute. In the threefold test evolved in Privacy Judgment, proportionality is the third 254 component. Dr. D.Y. Chandrachud, J. in Paragraph 310 has stated following in respect of proportionality: “310. While it intervenes to protect legitimate State interests, the State must nevertheless put into place a robust regime that ensures the fulfilment of a threefold requirement. These three requirements apply to all restraints on privacy (not just informational privacy). They emanate from the procedural and contentbased mandate of Article 21. The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement. Second, the requirement of a need, in terms of a legitimate State aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgment.
Judicial review does not reappreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the 255 encroachment on the right is not disproportionate to the purpose of the law. Hence, the threefold requirement for a valid law arises out of the mutual interdependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms.”
274. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.
275. European Court of Justice in Michael Schwarz Vs. Stadt Bochum in its judgment dated 17.10.2013, while considering a directive of the European Parliament and on the protection of individuals with regard to the processing of personal data and on the free movement of such data, has applied the proportionality 256 principle. Following was laid down in Paragraph 40: “40. Fourth, the Court must establish whether the limitations placed on those rights are proportionate to the aims pursued by Regulation No. 2252/2004 and, by extension, to the objective of preventing illegal entry into the European Union. It must therefore be ascertained whether the measures implemented by that regulation are appropriate for attaining those aims and do not go beyond what is necessary to achieve them (see Volker and Markus Schedule and Eifert, paragraph 74).”
276. Court of Justice of the European Union in Digital Rights Ireland Ltd. Vs. Minister for Communications [2015] QBECJ 127 had occasion to consider the validity of Parliament and Council Directive 2006/24/EC on the retention of data generated or processed by them in connection with the provision of publicly available electronic communications services or of public communications networks. Applying the principle of proportionality, it was held that principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is 257 appropriate and necessary in order to achieve those objectives. Following was laid down in Paragraph 46:
“46. In summary, Directive 2006/24 is characterised by its functional duality. It is, on the one hand, an entirely traditional Directive which seeks to harmonise national laws that are disparate (recital (5) in the Preamble to Directive 2006/24 states that national laws ”vary considerably”) or likely to become so, and was adopted in the interests of the functioning of the internal market and precisely calibrated for that purpose, as the court ruled in Ireland v European Parliament. However, it is also, on the other hand, a Directive which, even in its harmonising function, seeks to establish where appropriate, obligations in particular data retention obligations which constitute, as I shall show later, serious interference with the enjoyment of the fundamental rights guaranteed to European citizens by the Charter, in particular the right to privacy and the right to the protection of personal data.”
277. Another judgment by Court of the Justice of European Union (Grand Chamber) is Tele2 Sverige AB Vs. Postoch telesyrelsen. A directive of European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector came for consideration. In Paras 95, 96 and 116 following 258 was laid down: “95. With respect to that last issue, the first sentence of Article 15(1) of Directive 2002/58 provides that Member States may adopt a measure that derogates from the principle of confidentiality of communications and related traffic data where it is a ‘necessary, appropriate and proportionate measure within a democratic society’, in view of the objectives laid down in that provision. As regards recital 11 of that directive, it states that a measure of that kind must be ‘strictly’ proportionate to the intended purpose. In relation to, in particular, the retention of data, the requirement laid down in the second sentence of Article 15(1) of that directive is that data should be retained ‘for a limited period’ and be ‘justified’ by reference to one of the objectives stated in the first sentence of Article 15(1) of that directive.
96. Due regard to the principle of proportionality also derives from the Court’s settled caselaw to the effect that the protection of the fundamental right to respect for private life at EU level requires that derogations from and limitations on the protection of personal data should apply only in so far as is strictly necessary (judgments of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C 73/07,EU:C:2008:727,paragraph 56; of 9 November 2010, Volker und Markus Schecke and Eifert, C92/09 and C93/09, EU:C:2010:662, paragraph 77; the Digital Rights judgment, paragraph 52, and of 6 October 2015, Schrems, C362/14, EU:C:2015:650, paragraph 92).