(j) In the process, sanctity of privacy in its functional relationship with dignity is kept in mind where it says that legitimate expectation of privacy may vary from intimate zone to the private zone and from the private to public arena. Reasonable expectation of privacy is also taken into consideration. The Court finds that as the information collected at the time of enrolment as well as authentication is minimal, balancing at the first level is met. Insofar as second level, namely, balancing of two competing fundamental rights is concerned, namely, dignity in the form of autonomy (informational Writ Petition (Civil) No. 494 of 2012 & connected matters Page 551 of 567 privacy) and dignity in the form of assuring better living standards of the same individual, the Court has arrived at the conclusion that balancing at the second level is also met. The detailed discussion in this behalf amply demonstrates that enrolment in Aadhaar of the unprivileged and marginalised section of the society, in order to avail the fruits of welfare schemes of the Government, actually amounts to empowering these persons. On the one hand, it gives such individuals their unique identity and, on the other hand, it also enables such individuals to avail the fruits of welfare schemes of the Government which are floated as socio-economic welfare measures to uplift such classes. In that sense, the scheme ensures dignity to such individuals. This facet of dignity cannot be lost sight of and needs to be acknowledged. We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity. Here we find that the inroads into the privacy rights where these individuals are made to part with their biometric information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles. In Writ Petition (Civil) No. 494 of 2012 & connected matters Page 552 of 567 fact, this technology becomes a vital tool of ensuring good governance in a social welfare state. We, therefore, are of the opinion that the Aadhaar Act meets the test of balancing as well.
(k) Insofar as the argument based on probabilistic system of Aadhaar, leading to ‘exclusion’ is concerned, the Authority has claimed that biometric accuracy is 99.76% and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water along with the water. In the name of 0.232% failure (which can in any case be remedied) should be revert to the pre-Aadhaar stage with a system of leakages, pilferages and corruption in the implementation of welfare schemes meant for marginalised section of the society, the full fruits thereof were not reaching to such people?
(l) The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some. It is clarified that the Court is not trivialising the problem of exclusion if it is there. However, what we are emphasising is that remedy is to plug the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 553 of 567 loopholes rather than axe a project, aimed for the welfare of large section of the society. Obviously, in order to address the failures of authentication, the remedy is to adopt alternate methods for identifying such persons, after finding the causes of failure in their cases. We have chosen this path which leads to better equilibrium and have given necessary directions also in this behalf, viz:
(i) We have taken on record the statement of the learned Attorney General that no deserving person would be denied the benefit of a scheme on the failure of authentication.
(ii) We are also conscious of the situation where the formation of fingerprints may undergo change for various reasons. It may happen in the case of a child after she grows up; it may happen in the case of an individual who gets old; it may also happen because of damage to the fingers as a result of accident or some disease etc. or because of suffering of some kind of disability for whatever reason. Even iris test can fail due to certain reasons including blindness of a person.
We again emphasise that no person rightfully entitled to the benefits shall be denied the same on such grounds. It would be appropriate if a suitable provision be made in the concerned regulations for establishing an identity by alternate Writ Petition (Civil) No. 494 of 2012 & connected matters Page 554 of 567 means, in such situations.
(m) As far as subsidies, services and benefits are concerned, their scope is not to be unduly expanded thereby widening the net of Aadhaar, where it is not permitted otherwise. In this respect, it is held as under:
(i) ‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class.
(ii) It would cover only those ‘benefits’ etc. the expenditure thereof has to be drawn from the Consolidated Fund of India.
(iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law.
(3) Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?
Answer:
(a) For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 555 of 567
(b) On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the option to exit from the Aadhaar project if they so choose in case they do not intend to avail the benefits of the scheme.
(c) Insofar as the school admission of children is concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well.
(d) Benefits to children between 6 to 14 years under Sarv Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
(e) For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of these schemes if, for some reasons, she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents. This we say having regard to the statement which was made by Mr. K.K. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 556 of 567 Venugopal, learned Attorney General for India, at the Bar.
(4) Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality:
(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
(xiii) Section 29
(xiv) Section 33
(xv) Section 47 (xvi) Section 48 (xvii) Section 57 (xviii) Section 59 Answer:
(a) Section 2(d) which pertains to authentication records, such records would not include metadata as mentioned in Regulation 26(c) of the Aadhaar (Authentication) Regulations, 2016. Therefore, this provision in the present form is struck down. Liberty, however, is given to reframe the regulation, keeping in view the parameters stated by the Court.
(b) Insofar as Section 2(b) is concerned, which defines ‘resident’, the apprehension expressed by the petitioners was that Writ Petition (Civil) No. 494 of 2012 & connected matters Page 557 of 567 it should not lead to giving Aadhaar card to illegal immigrants.
We direct the respondent to take suitable measures to ensure that illegal immigrants are not able to take such benefits.
(c) Retention of data beyond the period of six months is impermissible. Therefore, Regulation 27 of Aadhaar (Authentication) Regulations, 2016 which provides archiving a data for a period of five years is struck down.
(d) Section 29 in fact imposes a restriction on sharing information and is, therefore, valid as it protects the interests of Aadhaar number holders. However, apprehension of the petitioners is that this provision entitles Government to share the information ‘for the purposes of as may be specified by regulations’. The Aadhaar (Sharing of Information) Regulations, 2016, as of now, do not contain any such provision. If a provision is made in the regulations which impinges upon the privacy rights of the Aadhaar card holders that can always be challenged.
(e) Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing. If such Writ Petition (Civil) No. 494 of 2012 & connected matters Page 558 of 567 an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court. During the hearing before the concerned court, the said individual can always object to the disclosure of information on accepted grounds in law, including Article 20(3) of the Constitution or the privacy rights etc.
(f) Insofar as Section 33(2) is concerned, it is held that disclosure of information in the interest of national security cannot be faulted with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. We may point out that such provisions of application of judicial mind for arriving at the conclusion that disclosure of information is in the interest of national security, are prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision on the lines suggested above.
(g) Insofar as Section 47 of the Act which provides for the cognizance of offence only on a complaint made by the Authority or any officer or person authorised by it is concerned, it needs a Writ Petition (Civil) No. 494 of 2012 & connected matters Page 559 of 567 suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated.
(h) Insofar as Section 57 in the present form is concerned, it is susceptible to misuse inasmuch as: (a) It can be used for establishing the identity of an individual ‘for any purpose’. We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny. (b) Such purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met. (c) Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge Writ Petition (Civil) No. 494 of 2012 & connected matters Page 560 of 567 upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.
(i) Other provisions of Aadhaar Act are held to be valid, including Section 59 of the Act which, according to us, saves the pre-enactment period of Aadhaar project, i.e. from 2009-2016. (5) Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust? Answer:
Aadhaar Act meets the concept of Limited Government, Good Governance and Constitutional Trust. (6) Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Constitution? Answer:
(a) We do recognise the importance of Rajya Sabha (Upper House) in a bicameral system of the Parliament. The significance and relevance of the Upper House has been succinctly exemplified by this Court in Kuldip Nayar’s case. The Rajya Sabha, therefore, becomes an important institution signifying constitutional fedaralism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The only exception to the aforesaid Writ Petition (Civil) No. 494 of 2012 & connected matters Page 561 of 567 Parliamentary norm is Article 110 of the Constitution of India.
Having regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides.
(b) The petitioners accept that Section 7 of the Aadhaar Act has the elements of ‘Money Bill’. The attack is on the premise that some other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar Act) do not fall under any of the clauses of Article 110 of the Constitution and, therefore, Bill was not limited to only those subjects mentioned in Article 110. Insofar as Section 7 is concerned, it makes receipt of subsidy, benefit or service subject to establishing identity by the process of authentication under Aadhaar or furnish proof of Aadhaar etc. It is also very clearly declared in this provision that the expenditure incurred in respect of such a subsidy, benefit or service would be from the Consolidated Fund of India. It is also accepted by the petitioners that Section 7 is the main provision of the Act. In fact, introduction to the Act as well as Statement of Objects and Reasons very categorically record that the main purpose of Aadhaar Act is to ensure that such subsidies, benefits and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 562 of 567 services reach those categories of persons, for whom they are actually meant.
(c) As all these three kinds of welfare measures are sought to be extended to the marginalised section of society, a collective reading thereof would show that the purpose is to expand the coverage of all kinds of aid, support, grant, advantage, relief provisions, facility, utility or assistance which may be extended with the support of the Consolidated Fund of India with the objective of targeted delivery. It is also clear that various schemes which can be contemplated by the aforesaid provisions, relate to vulnerable and weaker section of the society. Whether the social justice scheme would involve a subsidy or a benefit or a service is merely a matter of the nature and extent of assistance and would depend upon the economic capacity of the State. Even where the state subsidizes in part, whether in cash or kind, the objective of emancipation of the poor remains the goal.
(d) The respondents are right in their submission that the expression subsidy, benefit or service ought to be understood in the context of targeted delivery to poorer and weaker sections of society. Its connotation ought not to be determined in the abstract. For as an abstraction one can visualize a subsidy being Writ Petition (Civil) No. 494 of 2012 & connected matters Page 563 of 567 extended by Parliament to the King; by Government to the Corporations or Banks; etc. The nature of subsidy or benefit would not be the same when extended to the poor and downtrodden for producing those conditions without which they cannot live a life with dignity. That is the main function behind the Aadhaar Act and for this purpose, enrolment for Aadhaar number is prescribed in Chapter II which covers Sections 3 to
6. Residents are, thus, held entitled to obtain Aadhaar number. We may record here that such an enrolment is of voluntary nature. However, it becomes compulsory for those who seeks to receive any subsidy, benefit or service under the welfare scheme of the Government expenditure whereof is to be met from the Consolidated Fund of India. It follows that authentication under Section 7 would be required as a condition for receipt of a subsidy, benefit or service only when such a subsidy, benefit or service is taken care of by Consolidated Fund of India. Therefore, Section 7 is the core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution. Upto this stage, there is no quarrel between the parties.
(e) On examining of the other provisions pointed out by the petitioners in an attempt to take it out of the purview of Money Writ Petition (Civil) No. 494 of 2012 & connected matters Page 564 of 567 Bill, we are of the view that those provisions are incidental in nature which have been made in the proper working of the Act. In any case, a part of Section 57 has already been declared unconstitutional. We, thus, hold that the Aadhaar Act is validly passed as a ‘Money Bill’.
(7) Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional? Answer:
Validity of this provision was upheld in the case of Binoy Viswam by repelling the contentions based on Articles 14 and 19 of the Constitution. The question of privacy which, at that time, was traced to Article 21, was left open. The matter is reexamined on the touchstone of principles laid down in K.S. Puttaswamy. The matter has also been examined keeping in view that manifest arbitrariness is also a ground of challenge to the legislative enactment. Even after judging the matter in the context of permissible limits for invasion of privacy, namely: (i) the existence of a law; (ii) a ‘legitimate State interest’; and (iii) such law should pass the ‘test of proportionality’, we come to the conclusion that all these tests are satisfied. In fact, there is specific discussion on these aspects in Binoy Viswam’s case as well. (8) Whether Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications Writ Petition (Civil) No. 494 of 2012 & connected matters Page 565 of 567 issued thereunder which mandates linking of Aadhaar with bank accounts is unconstitutional?
Answer:
(a) We hold that the provision in the present form does not meet the test of proportionality and, therefore, violates the right to privacy of a person which extends to banking details.
(b) This linking is made compulsory not only for opening a new bank account but even for existing bank accounts with a stipulation that if the same is not done then the account would be deactivated, with the result that the holder of the account would not be entitled to operate the bank account till the time seeding of the bank account with Aadhaar is done. This amounts to depriving a person of his property. We find that this move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality. To recapitulate, the test of proportionality requires that a limitation of the fundamental rights must satisfy the following to be proportionate: (i) it is designated for a proper purpose; (ii) measures are undertaken to effectuate the limitation are rationally connected to the fulfilment of the purpose; (iii) there are no alternative less invasive measures; and
(iv) there is a proper relation between the importance of achieving the aim and the importance of limiting the right.
(c) The Rules are held to be disproportionate for the reasons Writ Petition (Civil) No. 494 of 2012 & connected matters Page 566 of 567 stated in the main body of this Judgment.
(9) Whether Circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional? Answer:
Circular dated March 23, 2017 mandating linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law and is hereby quashed. (10) Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?
Answer:
This question is answered in the negative.
448) In view of the aforesaid discussion and observations, the writ petitions, transferred cases, special leave petition, contempt petitions and all the pending applications stand disposed of.
.............................................CJI.
(DIPAK MISRA) .............................................J.
(A.K. SIKRI) .............................................J.
(A.M. KHANWILKAR) NEW DELHI;
SEPTEMBER 26, 2018.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 567 of 567 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 494 OF 2012 JUSTICE K S PUTTASWAMY (RETD) & ANR ...PETITIONERS Versus UNION OF INDIA & ORS ...RESPONDENTS WITH T C (C) NO 151 OF 2013 T C (C) NO 152 OF 2013 W P (C) NO 833 OF 2013 W P (C) NO 829 OF 2013 T P (C) NO 1797 OF 2013 W P (C) NO 932 OF 2013 1 T P (C) NO 1796 OF 2013 CONMT. PET. (C) NO 144 OF 2014 T P (C) NO 313 OF 2014 T P (C) NO 312 OF 2014 SLP (CRL) NO 2524 OF 2014 W P (C) NO 37 OF 2015 W P (C) NO 220 OF 2015 CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013 T P (C) NO 921 OF 2015 CONMT. PET. (C) NO 470 OF 2015 W P (C) NO 231 OF 2016 CONMT. PET. (C) NO 444 OF 2016 CONMT. PET. (C) NO 608 OF 2016 W P (C) NO 797 OF 2016 CONMT. PET. (C) NO 844 OF 2017 2 W P (C) NO 342 OF 2017 W P (C) NO 372 OF 2017 W P (C) NO 841 OF 2017 W P (C) NO 1058 OF 2017 W P (C) NO 966 OF 2017 W P (C) NO 1014 OF 2017 W P (C) NO 1002 OF 2017 W P (C) NO 1056 OF 2017 AND WITH CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017 3 JUDGMENT INDEX A Introduction: technology, governance and freedom B The Puttaswamy1 principles B.I Origins: privacy as a natural right B.2 Privacy as a constitutionally protected right : liberty and dignity B.3 Contours of privacy B.4 Informational privacy B.5 Restricting the right to privacy B.6 Legitimate state interests C Submissions C.I Petitioners’ submissions C.2 Respondents’ submissions D Architecture of Aadhaar: analysis of the legal framework E Passage of Aadhaar Act as a Money Bill E.I Judicial Review of the Speaker’s Decision E.2 Aadhaar Act as a Money Bill F Biometrics, Privacy and Aadhaar F.I Increased use of biometric technology F.2 Consent in the collection of biometric data F.3 Position before the Aadhaar legislation 1 (2017) 10 SCC 1 4 F.4 Privacy Concerns in the Aadhaar Act
1. Consent during enrolment and authentication & the right to access information under the Aadhaar Act
2. Extent of information disclosed during authentication & sharing of core biometric information
3. Expansive scope of biometric information
4. Other concerns regarding the Aadhaar Act: Misconceptions regarding the efficacy of biometric information
5. No access to biometric records in database
6. Biometric locking
7. Key takeaways G Legitimate state aim G.I Directive Principles G.2 Development and freedom G.3 Identity and Identification H Proportionality H.I Harmonising conflicting rights H.2 Proportionality standard in Indian jurisprudence H.3 Comparative jurisprudence H.4 Aadhaar: The proportionality analysis H.5 Dignity and financial exclusion H.6 Constitutional validity of Section 139AA of the Income Tax Act 1961 H.7 Linking of SIM cards and Aadhaar numbers I Money laundering rules J Savings in Section 59 K Rule of law and violation of interim orders L Conclusion 5 PART A Dr Dhananjaya Y Chandrachud, J A Introduction: technology, governance and freedom 1 Technology and biometrics are recent entrants to litigation. Individually, each presents specific claims: of technology as the great enabler; and of biometrics as the unique identifier. As recombinant elements, they create as it were, new genetic material. Combined together, they present unforeseen challenges for governance in a digital age. Part of the reason for these challenges is that our law evolved in a radically different age and time. The law evolved instruments of governance in incremental stages. They were suited to the social, political and economic context of the time. The forms of expression which the law codified were developed when paper was ubiquitous. The limits of paper allowed for a certain freedom: the freedom of individuality and the liberty of being obscure. Governance with paper could lapse into governance on paper. Technology has become a universal language which straddles culture and language. It confronts institutions of governance with new problems. Many of them have no ready answers. 2 Technology questions the assumptions which underlie our processes of reasoning. It reshapes the dialogue between citizens and the state. Above all, it tests the limits of the doctrines which democracies have evolved as a shield which preserves the sanctity of the individual. 6 PART A 3 In understanding the interface between governance, technology and freedom, this case will set the course for the future. Our decision must address the dialogue between technology and power. The decision will analyse the extent to which technology has reconfigured the role of the state and has the potential to reset the lines which mark off no-fly zones: areas where the sanctity of the individual is inviolable. Our path will define our commitment to limited government. Technology confronts the future of freedom itself.
4 Granville Austin, the eminent scholar of the Indian Constitution had prescient comments on the philosophy of the Indian Constitution. He found it in three strands:
“The Constitution…may be summarized as having three strands: protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the mass of Indians...the three strands are mutually dependent and inextricably intertwined. Social revolution could not be sought or gained at the expense of democracy. Nor could India be truly democratic unless the social revolution had to establish a just society. Without national unity, democracy would be endangered and there would be little progress toward social and economic reform. And without democracy and reform, the nation would not hold together. With these three strands, the framers had spun a seamless web. Undue strain on, or slackness in any one strand would distort the web and risk its destruction and, with it, the destruction of the nation.
Maintaining harmony between the strands predictably would present those who later work the Constitution with great difficulties…”2 2 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University Press (2003) at page 6 7 PART A These three strands are much like the polycentric web of which Lon Fuller has spoken.3 A pull on one strand shakes the balance between the others. The equilibrium between them preserves the equilibrium of the Constitution. 5 This Court has been tasked with adjudicating on the constitutional validity of the Aadhaar project. The difficulties that Granville Austin had predicted would arise in harmonising the strands of the “seamless web” are manifested in the present case. This case speaks to the need to harmonise the commitment to social welfare while safeguarding the fundamental values of a liberal constitutional democracy.
6 To usher in a social revolution, India espoused the framework of a welfare state. The Directive Principles are its allies. The state is mandated to promote the welfare of its citizens by securing and protecting as effectively as possible a social order in which there is social, economic and political justice. Government plays a vital role in the social and economic upliftment of the nation’s citizenry by espousing equitable distribution of resources and creating equal opportunities. These are ideals that are meant to guide and govern State action. The State’s commitment to improve welfare is manifested through the measures and programmes which it pursues. 3 Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92, (1978), at pages 353-409 8 PART A 7 The Constitution of India incorporated a charter of human freedoms in Part III and a vision of transformative governance in Part IV. Through its rights jurisprudence, this Court has attempted to safeguard the rights in Part III and to impart enforceability to at least some of the Part IV rights by reading them into the former, as intrinsic to a constitutionally protected right to dignity. The Directive Principles are a reminder of the positive duties which the state has to its citizens. While social welfare is a foundational value, the Constitution is the protector of fundamental human rights. In subserving both those ideals, it has weaved a liberal political order where individual rights and freedoms are at the heart of a democratic society. The Constitution seeks to fulfil its liberal values by protecting equality, dignity, privacy, autonomy, expression and other freedoms.
8 Two recent books have explored the complexities of human identity. In “The Lies That Bind: Rethinking Identity”4, Kwame Anthony Appiah states that a liberal constitutional democracy is not a fate but a project. He draws inspiration from the Roman playwright Terence who observes: “I am human. I think nothing human alien to me.” Francis Fukuyama, on the other hand has a distinct nuance about identity. In “Identity: The Demand for Dignity and the Politics of Enlightenment5, he writes about how nations can facilitate “integrative national identities” based on liberal democratic values. Reviewing the books, Anand Giridharadas noted that Fukuyama’s sense of identity is 4 Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright Publishing (2018). 5 Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Enlightenment, Farrar, Straus and Giroux (2018).
9 PART A “large enough to be inclusive but small enough to give people a real sense of agency over their society.”6. Appiah and Fukuyama present two variants – for Appiah it has a cosmopolitan and global nature while it is more integrated with a nation state, for Fukuyama, though firmly rooted in a liberal constitutional order.
9 India has participated in and benefited from the reconfiguring of technology by the global community. We live in an age of information and are witness to a technological revolution that pervades almost every aspect of our lives. Redundancies and obsolescence are as ubiquitous as technology itself. Technology is a great enabler. Technology can be harnessed by the State in furthering access to justice and fostering good governance. 10 In an age symbolised by an information revolution, society is witnessing a shift to a knowledge economy7. In a knowledge economy, growth is dependent on the ‘quantity, quality, and accessibility’8 of information. The quest for digital India must nonetheless be cognisant of the digital divide. Access confronts serious impediments. Large swathes of the population have little or no access to the internet or to the resources required for access to information. With the growth of the knowledge economy, our constitutional jurisprudence has expanded privacy rights. A digital nation must not submerge 6 Anand Giridharadas, ‘What is Identity?’, The New York Times, 27 August, 2018. 7 Peter F Drucker, The Age of Discontinuity: Guidelines to Our Changing Society, Harper & Row (1969). Drucker’s book popularized the term ‘Knowledge Economy’. 8 ‘What is Knowledge Economy?’, IGI Global: Disseminator of Knowledge, available at: https://www.igi-global.com/dictionary/indigenous-knowledges-and-knowledge-codification-in-the-knowledge- economy/16327 10 PART A the identities of a digitised citizen. While data is the new oil, it still eludes the life of the average citizen. If access to welfare entitlements is tagged to unique data sets, skewed access to informational resources should not lead to perpetuating the pre-existing inequalities of access to public resources. An identification project that involves the collection of the biometric and demographic information of 1.3 billion people9, creating the largest biometric identity project in the world, must be scrutinized carefully to assess its compliance with human rights.
11 Empowered by the technology that accompanied the advent of the information age, the Aadhaar project was envisioned and born. The project is a centralised nation-wide identification system based on biometric technology. It aims to be a game changer in the delivery of welfare benefits through the use of technology. The project seeks to facilitate de-duplication, prevent revenue leakages and ensure a more cost and time efficient procedure for identification. Conceptualised on the use of biometrics and authentication, the Aadhaar identity card was originally introduced as a matter of voluntary choice. It was made a requirement for state subsidies and benefits for which, expenses are incurred from the Consolidated Fund of India. It was later expanded to become necessary to avail of a host of other services. The project is multifaceted and expansive. Perhaps no similar national identity program exists in the world. The Aadhaar project has multifarious aspects, all 9 Krishnadas Rajagopal, ‘Aadhaar in numbers: key figures from UIDAI CEO’s presentation to the Supreme Court’, The Hindu, (March 22, 2018). Aadhaar enrollment as of March 2018 stood at over 1 billion. 11 PART A of which have been the subject of a detailed challenge by the Petitioners. They have been met with an equally strong defence from the government, which has argued that the programme is indispensable to curb corruption, fraud and black money.
12 The Aadhaar project raises two crucial questions: First, are there competing interests between human rights and ‘welfare furthering technology’ in democratic societies? Can technologies which are held out to bring opportunities for growth, also violate fundamental human freedoms? Second, if the answer to the first is in the affirmative, how should the balance be struck between these competing interests?
13 Efficiency is a significant facet of institutional governance. But efficiencies can compromise dignity. When efficiency becomes a universal mantra to steam-roll fundamental freedoms, there is a danger of a society crossing the line which divides democracy from authoritarian cultures. At the heart of the grounds on which the Aadhaar project has been challenged, lies the issue of power. Our Constitution is a transformative document in many ways. One of them is in defining and limiting the State’s powers, while expanding the ambit of individual rights and liberties. It protects citizens from totalitarian excesses and establishes order between the organs of the State, between the State and citizens and between citizens. Most importantly, it reaffirms the position of the individual as the core defining element of the 12 PART A polity. That is the justification to restrain power by empowering all citizens to be authors of their destiny. According to the Petitioners, the technological potential as well as the actual implementation of the Aadhaar project alters the balance between the state and its citizens in this relational sphere and has the potential to permanently redistribute power within the constitutional framework.
14 As far as citizen-state relations are concerned, the Constitution was framed to balance the rights of the individual against legitimate State interests. Being transformative, it has to be interpreted to meet the needs of a changing society. As the interpreter of the Constitution, it is the duty of this Court to be vigilant against State action that threatens to upset the fine balance between the power of the state and rights of citizens and to safeguard the liberties that inhere in our citizens.
15 The present case involves issues that travel to the heart of our constitutional structure as a democracy governed by the rule of law. Among them is the scope of this Court’s power of judicial review. The Aadhaar legislation was passed as a money bill in the Lok Sabha. Whether it was permissible, in constitutional terms, to by-pass the Rajya Sabha, is the question. The role of the Rajya Sabha in a bicameral legislative structure, the limits of executive power when it affects fundamental rights and the duty of the 13 PART A state to abide by interim orders of this Court are matters which will fall for analysis in the case.
16 The case is hence as much about the rule of law and institutional governance. Accountability is a key facet of the rule of law. Professor Upendra Baxi has remarked:
“The problem of human rights, in situations of mass poverty, is thus one of redistribution, access and needs. In other words, it is a problem of “development”, a process of planned social change through continuing exercise of public power. As there is no assurance that public power will always, or even in most cases, be exercised in favour of the deprived and dispossessed, an important conception of development itself is accountability, by the wielders of public power, to the people affected by it and people at large. Accountability is the medium through which we can strike and maintain a balance between the governors and the governed.”10 These are some of the unique challenges of this case. They must be analysed in the context of our constitutional framework. The all-encompassing nature of the Aadhaar project, its magnitude and the resultant impact on citizens’ fundamental rights, make it imperative to closely scrutinize the structure and effect of the project. For this will determine the future of freedom.10 Upendra Baxi, The Right To Be Human: Some Heresies, India International Centre Quarterly, Vol. 13, (1986).
14
PART B
B The Puttaswamy11 principles
17 A unanimous verdict by a nine judge Bench declared privacy to be
constitutionally protected, as a facet of liberty, dignity and individual autonomy. In a voluminous judgment, the Court traced the origins of privacy and its content. The decision lays down the test of proportionality to evaluate the constitutional validity of restrictions on the right to privacy. 18 The protection of privacy emerges both from its status as a natural right inhering in every individual as well as its position as “a constitutionally protected right”. As a constitutional protection, privacy traces itself to the guarantee of life and personal liberty in Article 21 of the Constitution as well as to other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III.
B.I Origins: privacy as a natural right 19 Puttaswamy holds that the right to privacy inheres in every individual
as a natural right. It is inalienable and attaches to every individual as a pre- condition for being able to exercise their freedom. The judgment of four judges (with which Justice Sanjay Kishan Kaul concurred) held :
“42. Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin 11 Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1 15 PART B in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality.”12 (Emphasis supplied) “319. Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.”13 (Emphasis supplied) In his concurring opinion, S A Bobde, J. opined:
“392…Privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.”14 (Emphasis supplied) Similarly, in his concurring opinion, Nariman, J. opined:
“532…It was, therefore, argued before us that given the international conventions referred to hereinabove and the fact that this right inheres in every individual by virtue of his being a human being, such right is not conferred by the Constitution but is only recognized and given the status of being fundamental. There is no doubt that the petitioners are correct in this submission.”15 (Emphasis supplied) In his concurring opinion, Abhay Manohar Sapre, J. opined:
“557. In my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth…It is indeed inseparable and inalienable from human being.”16 (Emphasis supplied) 12 Ibid, at page 365 13 Ibid, at page 508 14 Ibid, at pages 536-537 15 Ibid, at page 605 16 Ibid, at page 614 16 PART B The judgment authoritatively settles the position. While privacy is recognized and protected by the Constitution as an intrinsic and inseparable part of life, liberty and dignity, it inheres in every individual as a natural right.
B.2 Privacy as a constitutionally protected right : liberty and dignity 20 The judgment placed the individual at the centre of the constitutional rights regime. The individual lies at the core of constitutional focus. The ideals of justice, liberty, equality and fraternity animate the vision of securing a dignified existence to the individual. The Court held that privacy attaches to the person and not the place where it is associated. Holding that privacy protects the autonomy of the individual and the right to make choices, the judgment of four judges held:
“108….The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well being of the community is determined.
Human dignity is an integral part of the Constitution.17 “266. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV.” (Emphasis supplied) It was held that privacy rests in every individual “irrespective of social class or economic status” and that every person is entitled to the intimacy and autonomy that privacy protects:
17 Ibid, at page 403 17 PART B “271...It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”18 (Emphasis supplied) 21 Recognizing that civil-political rights are not subservient to socio- economic rights, the Court held that “conditions necessary for realizing or fulfilling socio-economic rights do not postulate the subversion of political freedom.” “266...The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio- economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights.19
267... Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.”20 18 Ibid, at page 484 19 Ibid, at pages 481-482 20 Ibid, at page 482 18 PART B Significantly, the Court rejected the submission that there is a conflict between civil-political rights and socio-economic rights. Both in the view of the Court are an integral part of the constitutional vision of justice. 22 Privacy, it was held, reflects the right of the individual to exercise control over his or her personality. This makes privacy the heart of human dignity and liberty. Liberty and dignity are complementary constitutional entities. Privacy was held to be integral to liberty. Privacy facilitates the realization of constitutional freedoms. This Court held thus:
“119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”21
127...The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”22 21 Ibid, at pages 406-407 22 Ibid, at page 413 19 PART B 23 The assurance of human dignity enhances the quality of life. The “functional relationship” between privacy and dignity secures the “inner recesses of the human personality from unwanted intrusion”. Privacy by recognizing the autonomy of an individual, protects the right to make choices essential to a dignified life. It thus enables the realization of constitutional liberties and freedoms. It was held in the judgment:
“322. Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded.
At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.23 298…Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”24 24 Privacy is founded on the autonomy of the individual. The ability to make choices is at the core of the human personality. Its inviolable nature is manifested in the ability to make intimate decisions about oneself with a legitimate expectation of privacy. Privacy guarantees constitutional protection to all aspects of personhood. Privacy was held to be an “essential condition” for the exercise of most freedoms. As such, given that privacy and liberty are intertwined, privacy is necessary for the exercise of liberty. Bobde J, in his separate opinion held that:
23 Ibid, at page 508 24 Ibid, at page 499 20 PART B “409...Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy.25
411... Both dignity and privacy are intimately intertwined and are natural conditions for the birth and death of individuals, and for many significant events in life between these events. Necessarily, then, the right of privacy is an integral part of both ‘life’ and ‘personal liberty’ under Article 21, and is intended to enable the rights bearer to develop her potential to the fullest extent made possible only in consonance with the constitutional values expressed in the Preamble as well as across Part III.”26 25 Apart from being a natural law right, the right to privacy was held to be a constitutionally protected right flowing from Article 21. Privacy is an indispensable element of the right to life and personal liberty under Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. Tracing out the course of precedent in Indian jurisprudence over the last four decades, the view of four judges holds:
“103. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19.”27 “320. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution…”28 25 Ibid, at page 543 26 Ibid, at page 544 27 Ibid, at page 401 28 Ibid, at page 508 21 PART B In a similar vein, Chelameswar J. while concurring with the view of four judges held:
“375. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.”29 26 Being indispensable to dignity and liberty, and essential to the exercise of freedoms aimed at the self-realization of every individual, privacy was held to be a common theme running across the freedoms and rights guaranteed not just by Article 21, but all of Part III of the Constitution. Bobde J. in his separate opinion held that:
“406. It is not possible to truncate or isolate the basic freedom to do an activity in seclusion from the freedom to do the activity itself. The right to claim a basic condition like privacy in which guaranteed fundamental rights can be exercised must itself be regarded as a fundamental right. Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of ‘personal liberty’ and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the Constitution.30
415. Privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy.” (Emphasis supplied) 29 Ibid, at page 531 30 Ibid, at pages 541-542 22 PART B B.3 Contours of privacy 27 Privacy has been held to have distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. The judgment of four judges held that:
“248. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress.
Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” Similarly, Nariman J. in his separate opinion held:
“521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: • Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely; • Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him.
Unauthorised use of such information may, therefore lead to infringement of this right; and • The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.”31 28 However, it was held that this is not an exhaustive formulation of entitlements. In recording its conclusions, the opinion of four judges held:
“324. This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be 31 Ibid, at page 598 23 PART B frozen on the perspectives present when it was adopted.
Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features.”32 (Emphasis supplied) Additionally, Bobde J., in his separate opinion held that the right to privacy may also inhere in other parts of the Constitution beyond those specified in the judgment:
“415. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us.”33 (Emphasis supplied) B.4 Informational privacy 29 Puttaswamy held that informational privacy is an essential aspect of the fundamental right to privacy. It protects an individual’s free, personal conception of the ‘self.’ Justice Nariman held that informational privacy “deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him”. Any unauthorised use of such information may therefore lead to infringement of the 32 Ibid, at page 509 33 Ibid, at page 545 24 PART B right to privacy. In his concurring judgment, Justice Kaul held that informational privacy provides the right to an individual “to disseminate certain personal information for limited purposes alone”. Kaul J. in his separate opinion held:
“620…The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations.
Privacy assists in preventing awkward social situations and reducing social frictions. Most of the information about individuals can fall under the phrase “none of your business”. … An individual has the right to control one’s life while submitting personal data for various facilities and services. It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it. The hallmark of freedom in a democracy is having the autonomy and control over our lives which becomes impossible, if important decisions are made in secret without our awareness or participation.”34 (Emphasis supplied) 30 A reasonable expectation of privacy requires that data collection does not violate the autonomy of an individual. The judgment of four judges noted the centrality of consent in a data protection regime. This was also highlighted in the separate concurring opinion of Justice Kaul:
“625. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity.
This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.”35 34 Ibid, at page 627 35 Ibid, at page 629 25 PART B Consent, transparency and control over information are crucial to informational privacy. In this structure, Court has principally focused on the “individual” as central to our jurisprudence.
B.5 Restricting the right to privacy 31 There is an inherent importance of giving a constitutional status to
privacy. Justice Nariman dealt with this:
“490...The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments. Statutes may protect fundamental rights; they may also infringe them. In case any existing statute or any statute to be made in the future is an infringement of the inalienable right to privacy, this Court would then be required to test such statute against such fundamental right and if it is found that there is an infringement of such right, without any countervailing societal or public interest, it would be the duty of this Court to declare such legislation to be void as offending the fundamental right to privacy.”36 A constitutional right may embody positive and negative ‘aspects’. They signify mandates. At an affirmative level, they emphasise the content and diversity of our liberties. As a ‘negative’, they impose restraints on the state and limit the power of the state to intrude upon the area of personal freedom.
‘Negative’ in this sense reflects a restraint: the fundamental rights are a restraining influence on the authority of power. In addition to keeping itself within the bounds of its authority, the state may have a positive obligation to perform. Rights such as informational privacy and data protection mandate 36 Ibid, at pages 580-581 26 PART B that the state must bring into being a viable legal regime which recognizes, respects, protects and enforces informational privacy. Informational privacy requires the state to protect it by adopting positive steps to safeguard its cluster of entitlements. The right to informational privacy is not only vertical (asserted and protected against state actors) but horizontal as well.
Informational privacy requires legal protection because the individual cannot be left to an unregulated market place. Access to and exploitation of individual personal data – whether by state or non-state entities – must be governed by a legal regime built around the principles of consent, transparency and individual control over data at all times.
32 Privacy, being an intrinsic component of the right to life and personal liberty, it was held that the limitations which operate on those rights, under Article 21, would operate on the right to privacy. Any restriction on the right to privacy would therefore be subjected to strict constitutional scrutiny. The constitutional requirements for testing the validity of any encroachment on privacy were dealt with in the judgment as follows:
“325… In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”37 37 Ibid, at page 509 27 PART B These three-fold requirements emerge from the procedural and content-based mandate of Article 21. The first requirement is the enactment of a valid law, which justifies an encroachment on privacy. The second requirement of a legitimate State aim ensures that the law enacted to restrict privacy is constitutionally reasonable and does not suffer from manifest arbitrariness.
The third requirement of proportionality ensures that the nature and quality of the encroachment on the right to privacy is not disproportionate to the purpose of the law. Proportionality requires the State to justify that the means which are adopted by the legislature would encroach upon the right to privacy only to the minimum degree necessary to achieve its legitimate interest. Justice Nariman held thus:
“495…Statutory provisions that deal with aspects of privacy would continue to be tested on the ground that they would violate the fundamental right to privacy, and would not be struck down, if it is found on a balancing test that the social or public interest and the reasonableness of the restrictions would outweigh the particular aspect of privacy claimed. If this is so, then statutes which would enable the State to contractually obtain information about persons would pass muster in given circumstances, provided they safeguard the individual right to privacy as well… in pursuance of a statutory requirement, if certain details need to be given for the concerned statutory purpose, then such details would certainly affect the right to privacy, but would on a balance, pass muster as the State action concerned has sufficient inbuilt safeguards to protect this right – viz. the fact that such information cannot be disseminated to anyone else, save on compelling grounds of public interest.”38 33 While five judges of the Court adopted the “proportionality” standard to test a law infringing privacy, Justice Chelameswar discussed the need to 38 Ibid, at page 583 28 PART B apply of a “compelling state interest” standard, describing it as the “highest standard of scrutiny that a court can adopt”. Describing Article 21 as the “bedrock” of privacy, the learned Judge held:
“379…If the spirit of liberty permeates every claim of privacy, it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies.39
380. The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.
Gobind resorted to the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the United States where the terminology of ‘compelling state interest’ originated, a strict standard of scrutiny comprises two things- a ‘compelling state interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases.”40 (Emphasis supplied) Justice Chelameswar’s view accepts the ‘fair, just and reasonable’ standard in the generality of cases, carving an exception in cases of a certain category where a heightened scrutiny must apply. Those categories of exception are not spelt out. They would, as the judge opined, be evolved on a case by case basis.
39 Ibid, at page 532 40 Ibid, at pages 532-533 29 PART B 34 The Bench of nine judges had held that the contours of privacy exist across the spectrum of constitutionally protected freedoms. Privacy was held to be a necessary condition precedent to the enjoyment of the guarantees in Part III. This has enhanced the scope of the protection guaranteed to privacy. Consequently, privacy infringements will generally have to satisfy the other tests applicable apart from those under Article 21. In his concurring opinion, Justice S A Bobde held:
“427. Once it is established that privacy imbues every constitutional freedom with its efficacy and that it can be located in each of them, it must follow that interference with it by the state must be tested against whichever one or more Part III guarantees whose enjoyment is curtailed.
As a result, privacy violations will usually have to answer to tests in addition to the one applicable to Article 21, Such a view would be wholly consistent with R. C. Cooper v. Union of India.”41 (Emphasis supplied) Any attempt by the State to restrict privacy must therefore meet the constitutional requirements prescribed for each provision of Part III, which the restriction infringes. In his concurring opinion, Justice Nariman held thus:
“488... Every State intrusion into privacy interests which deals with the physical body or the dissemination of information personal to an individual or personal choices relating to the individual would be subjected to the balancing test prescribed under the fundamental right that it infringes depending upon where the privacy interest claimed is founded.”42 (Emphasis supplied) Justice Nariman further held:
“526…when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed. For example, if the restraint on privacy is over fundamental personal choices that an 41 Ibid, at page 549 42 Ibid, at page 580 30 PART B individual is to make, State action can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under Article 21 read with Article 19(1)(a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or subordinate legislation to pass muster under the said Article.
Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1) (a) in the aforesaid examples must be met in order that State action must pass muster.”43 (Emphasis supplied) The constitutional guarantee on protection of privacy was placed on a sure foundation. Since emanations of privacy are traceable to various rights guaranteed by Part III, a law or executive action which encroaches on privacy must meet the requirements of the constitutionally permissible restriction in relation to each of the fundamental rights where the claim is founded.
B.6 Legitimate state interests 35 Recognizing that the right to privacy is not absolute, the judgment
recognizes that legitimate state interests may be a valid ground for the curtailment of the right subject to the tests laid down for the protection of rights. Justice Nariman held:
“526...This right is subject to reasonable regulations made by the State to protect legitimate State interests or public interest. However, when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed.”44 43 Ibid, at page 601 44 Ibid, at page 601 31 PART B Recognizing that a legitimate state aim is a pre-requisite for any restriction on the right, the judgment of four judges held:
“310…the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.” 36 The judgment sets out illustrations of legitimate State interests. The provisos to various fundamental rights were held to be an obvious restriction on the right to privacy. It was held that the State does have a legitimate interest in collection and storage of private information when it is related to security of the nation. Apart from the concerns of national security, an important State interest, it was held, lies in ensuring that scarce public resources reach the beneficiaries for whom they are intended. It was held thus:
“311...Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes… Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data.”45 Prevention and investigation of crime, protection of the revenue and public health were demarcated as being part of other legitimate aims of the State.
The judgment places an obligation on the State to ensure that while its legitimate interests are duly preserved the data which the State collects is 45 Ibid, at page 505 32 PART B used only for the legitimate purposes of the State and is “not to be utilised unauthorizedly for extraneous purposes.” 37 However, reiterating that every facet of privacy is to be protected, the judgment held that there should be a careful balance between individual interests and legitimate concerns of the state. Justice Nariman, in his separate opinion held:
“488. Every State intrusion into privacy interests which deals with the physical body or the dissemination of information personal to an individual or personal choices relating to the individual would be subjected to the balancing test prescribed under the fundamental right that it infringes depending upon where the privacy interest claimed is founded.”46 38 The judgment in Puttaswamy recognizes the right to privacy as a constitutional guarantee protected as intrinsic to the freedoms guaranteed by Part III of the Constitution. Privacy is integral to the realization of human dignity and liberty. A society which protects privacy, values the worth of individual self-realization. For it is in the abyss of solitude that the innermost recesses of the mind find solace to explore within and beyond.
46 Ibid, at page 580 33 PART C C Submissions C.I Petitioners’ submissions The petitioners challenge the constitutional validity of:
a. The Aadhaar programme that operated between 28.01.2009 till the coming into force of the Aadhaar Act, 2016 on 12.07.2016; b. The Aadhaar Act, 2016 (and alternatively certain provisions of the Act); c. Regulations framed under the Aadhaar Act, 2016; d. Elements of the Aadhaar programme that continue to operate without the cover of the Act;
e. Subordinate legislation including the Money Laundering (Amendment) Rules, 2017;
f. All notifications issued under Section 7 of the Aadhaar Act in so far as they make Aadhaar mandatory for availing of certain benefits, services and subsidies; and g. Actions which made Aadhaar mandatory even where the activity is not covered by Section 7 of the Act.
Mr Shyam Divan, learned Senior Counsel submitted that the Aadhaar project and Act are ultra vires on the following grounds: i The project and the Act violate the fundamental right to privacy; 34 PART C ii The architecture of the Aadhaar project enables pervasive surveillance by the State;
iii The fundamental constitutional feature of a ‘limited government’ - which is the sovereignty of the people and limited government authority- is changed completely post Aadhaar and reverses the relationship between the citizen and the State;
iv Due to the unreliability of biometric technology, there are authentication failures which lead to the exclusion of individuals from welfare schemes; v A citizen or resident in a democratic society has a choice to identify herself through different modes in the course of her interactions generally in society, as well as in her interactions with the State. Mandating identification by only one mode is highly intrusive, excessive and disproportionate and violates Articles 14, 19 and 21; and vi The procedure adopted by the State before and after the enactment of the law is violative of Articles 14 and 21 because: a. There is no informed consent at the time of enrolment; b. UIDAI does not have control over the enrolling agencies and requesting entities that collect sensitive personal information which facilitates capture, storage and misuse of information; and 35 PART C c. The data collected and uploaded into the CIDR is not verified by any government official designated by UIDAI.
Mr Kapil Sibal, learned Senior Counsel submits that the provisions of the Aadhaar Act are unconstitutional for the following reasons: i The aggregation and concentration of sensitive personal information under the Aadhaar Act is impermissible because it is capable of being used to affect every aspect of an individual’s personal, professional, religious and social life. It is therefore violative of the individual freedoms guaranteed under Articles 19(1)(a) to 19(1)(g), 21 and 25 of the Constitution; ii Such aggregation of information is also an infringement of informational privacy, which has been recognised in Puttaswamy; iii Making Aadhaar mandatory unreasonably deprives citizens of basic rights and entitlements and infringes Article 21 of the Constitution; iv Use of Aadhaar as an exclusive identity for availing of subsidies, benefits and services is disproportionate and violates Article 14 for being arbitrary and discriminatory against persons otherwise entitled to such benefits; v Collection and storage of data with the government under the Aadhaar Act is violative of the right to protection from self-incrimination, and the right to 36 PART C privacy and personal dignity and bodily Integrity envisaged under Article 20(3) and Article 21 of the Constitution;
vi To prescribe that Aadhaar is the only identity that enables a person to receive entitlements is contrary to the right of an individual under the Constitution to identify the person through other prescribed documentation such as electoral rolls or passports;
vii Section 7 of the Aadhaar Act is applicable only to such subsidies, benefits and services, for which the entire expenditure is directly incurred from the Consolidated Fund of India or from which the entire receipts directly form part of the Consolidated Fund of India;
viii Use of Aadhaar as the sole identity will not prevent pilferage and diversion of funds and subsidies, as faulty identification is only one of the factors that contributes to it; and ix The Aadhaar project conditions the grant of essential benefits upon the surrender of individual rights.
Mr Gopal Subramanium, learned Senior Counsel, made the following submissions:
37 PART C i The Aadhaar project violates dignity under Article 21 of the Constitution as recognised in the judgments- in Puttaswamy, NALSA47 and Subramanian Swamy48;
ii The Aadhaar project is unconstitutional as it seeks a waiver of fundamental rights;
iii The Aadhaar project violates the guarantees of substantive and procedural reasonableness under Articles 14,19 and 21; iv Aadhaar perpetrates exclusion from social security schemes and is therefore discriminatory under Article 14; v The Aadhaar Act lacks legitimacy in its object in so far as it validates a breach of fundamental rights retrospectively; vi Rights and entitlements conferred under the Constitution cannot be based on algorithmic probabilities which UIDAI cannot control; vii No consequence is prescribed for non-authentication under the Aadhaar Act;
viii The Aadhaar Act violates Part IX of the Constitution, which provides for decentralisation (to Panchayats), while the Aadhaar scheme strikes at the federal structure of the Constitution; and 47 (2014) 5 SCC 438 48 (2016) 7 SCC 221 38 PART C ix Breaches under the Aadhaar Act cannot be cured. Mr Arvind Datar, learned Senior Counsel has submitted: i Rule 9 of the PMLA (Second Amendment) Rules, 2017 which requires mandatory linking of Aadhaar with bank accounts is unconstitutional and violates Articles 14, 19(1)(g), 21 and 300A of the Constitution, Sections 3, 7 and 51 of the Aadhaar Act, and is also ultra vires of the provisions of the PMLA Act, 2002 on the following grounds: a. Under the impugned amended Rules, linkage of Aadhaar numbers to bank accounts is mandatory and persons not enrolling for Aadhaar cannot operate a bank account, which violates the spirit of Article 14 in entirety in so far it arbitrarily metes out unequal treatment based on unreasonable classification;
b The impugned Rules are violative of Article 19(1)(g) as the Rules refer to companies, firms, trusts, etc., whereas the Aadhaar Act is only to establish identity of “individuals”;
c Non-operation of a bank account, even for a temporary period, leads to deprivation of an individual's property and therefore constitutes a violation under Article 300A of the Constitution, which provides that deprivation can be done only by primary legislation; and 39 PART C d The Rule has no nexus to the object of the PMLA Act, as the Act has no provision to make bank accounts non-operational; ii Section 139AA of the Income Tax Act, 1961 is liable to be struck down as violative of Articles 14, 21 and 19(g) of the Constitution; iii The decision in Binoy Viswam v Union of India49 requires re-
consideration in view of the nine judge Bench decision in Puttaswamy; iv In view of serious deficiencies in the Aadhaar Act, there is a need for guidelines under Article 142 to protect inter alia, the right to privacy and to implement the mandate of the nine judge Bench in Puttaswamy; v If the Aadhaar project is not struck down, it should be confined only for identification or authentication of persons who are entitled to subsidies, benefits and services for which expenditure is incurred from the Consolidated Fund of India;
vi Sections 2(g), 2(j) 7, 57 and 59 of the Aadhaar Act violate Articles 14, 21 and 300A of the Constitution; and vii PMLA Rule 9 is arbitrary as it is contrary to the RBI Master Circular (issued in 2013), which provided a list of documents that were to be treated as ‘identity proof’, in relation to proof of name and proof of residence.
49(2017) 7 SCC 59 40 PART C Mr P Chidambaram, learned Senior Counsel argued that the Aadhaar Act could not have been passed as a Money Bill. Thus, he submitted: i The only difference between financial bills and money bills is the term “only” in Article 110 of the Constitution which implies that the scope of money bills is narrower than the scope of financial bills and provisions relating to money bills must thus be construed strictly; ii The Aadhaar Act, which was passed as a money bill, should be struck down since many of its provisions such as Section 57 have no relation to the nature of a Money Bill and bear no nexus to the Consolidated Fund of India;
iii Since Money Bills can only be introduced in the Lok Sabha, on account of the curtailment of the powers of the Rajya Sabha and the President, the relevant provisions must be accorded a strict interpretation; iv While Article 110(3) provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, the finality is only with regard to the Parliament and does not exclude judicial review; and v Since the legislative procedure is illegal and the power of the Rajya Sabha has been circumvented to disallow legislative scrutiny of the 41 PART C Aadhaar bill, provisions of the Act cannot be severed to save the Act and the Act is liable to be struck down as a whole by the Court. Mr KV Vishwanathan, learned Senior Counsel made the following submissions:
i All acts done prior to the passage of the Act are void ab initio and are not saved or validated by Section 59. In any event, Section 59 is invalid; ii Collection, storage and use of data under the Aadhaar project and Act are invalid for the following reasons:
a. The Aadhaar Act and the surrounding infrastructure has made the possession of Aadhaar de facto mandatory;
b. Compulsory collection of identity information violates various facets of the right to privacy - bodily privacy, informational privacy and decisional autonomy;
c. The Act is unconstitutional since it collects the identity information of children between 5-18 years without parental consent; d. Centralised storage of identity information and the unduly long period of retention of transaction data and authentication records is disproportionate;
42 PART C e. The Act and Regulations preclude Aadhaar number holders from accessing or correcting their identity information stored on the CIDR; and f. The Act and Regulations lack safeguards to secure sensitive personal data.
iii Services like health related services, and those related to food, pensions and daily wages claimed under Section 7 of the Act have been denied because of biometric failure. Biometric infrastructure operates on a probabilistic system, which cannot be ‘one hundred percent infallible’. Thus, the State needs to take steps to prevent the denial of benefits by adopting alternate methods for verification of identity. This is absent at present, resulting in a violation of Articles 14 & 21; iv No provision is made for a hearing against omission and deactivation of the Aadhaar number, which violates the principles of natural justice; and v Sections 2(g), 2(j), 2(k) and 23(2) of the Aadhaar Act suffer from excessive delegation and the allied regulations are vague, manifestly arbitrary and unreasonable.
Mr Anand Grover, learned Senior Counsel has submitted thus: 43 PART C i The Aadhaar project extends far beyond the scope of the Aadhaar Act with no procedural safeguards. Hence it violates Article 21 in as much as it is without the support and sanction of law. The data collected is unauthorised, excessive and being illegally shared; ii The use of biometric technology to establish identity is uncertain, unproven and unreliable leading to exclusion and a violation of Articles 14 and 21;
iii The lack of security in the Aadhaar project violates the right to privacy under Article 21;
iv Excessive powers have been delegated to the UIDAI through the Aadhaar Act; and v Sections 33(2) and 57 of the Act are vague, overbroad and constitutionally invalid.
Ms Meenakshi Arora, learned Senior Counsel contended that: i The general and indiscriminate retention of personal data, including meta-
data, and the ensuing possibility of surveillance by the State has a chilling effect on fundamental rights like the freedom of speech and expression, privacy, and dignity;44
PART C ii Making Aadhaar the sole means of identification for various services impinges upon dignity as it amounts to requiring a license for the exercise of fundamental rights; and iii The Aadhaar project does not contain any specific provisions for data protection, apart from a mere general obligation on UIDAI, which is a violation of the obligation of the State to ensure that the right to life, liberty, dignity and privacy of every individual is not breached under Part III of the Constitution.
Mr Sajjan Poovayya, learned Senior Counsel has urged the following submissions:
i The Aadhaar Act fails to satisfy the constitutional test of a just, fair and reasonable law;
ii Maintenance of Aadhaar records by the State under Section 32 is an unwarranted intrusion by the State;
iii Use of personal information under Section 33 is an unwarranted intrusion by the State;
iv Section 57 of the Act is contrary to the principle of purpose limitation; and 45 PART C v Sections 2(g) and 2(j), the proviso to Section 3(1), Section 23(2)(g) and Section 23(2)(n) read with Section 54(2)(l), and Section 29(4) of the Act suffer from the vice of excessive delegation. Mr CU Singh, learned Senior Counsel, argued that the rights of the child are violated through the Aadhaar project. A child has no right to give consent or to enter into a contract. A child in India, under law, has no power or right to bind herself to anything, to consent or enter into contracts. In this background, there is no compelling state interest to mandate Aadhaar for children. The fundamental right of a child to education cannot be made subject to production of Aadhaar. These requirements are not only contrary to domestic legislation protecting the rights of children but also against India’s international obligations. Learned counsel also spoke of the violation of the rights of homeless people who are denied benefits due to the lack of a fixed abode. Mr Sanjay Hegde, learned Senior Counsel has urged that since there is no ‘essential practice’ involved, exemptions must be allowed from the mandatory nature of the Aadhaar Act on the grounds of freedom of conscience under Article 25 of the Constitution.
 Aadhaar Regulations require demographic information. The enrolment form has a third gender, but there is no uniformity across the board, and the documents that have to be produced to get an Aadhaar card do not always have that option. Aadhaar is being made mandatory for almost everything but transgender persons cannot get an Aadhaar because they do not have the gender identity documents that Aadhaar requires. This non-recognition of gender identity leads to denial of benefits which is violative of both Articles 14 and 21. It has also been argued before us in an intervention application that denial of Aadhaar to Non-Resident Indians leads to discrimination when NRIs seek to avail of basic services in India.
C.2 Respondents’ submissions Mr KK Venugopal, Learned Attorney General for India, has submitted thus: i. For the period prior to coming into force of the Aadhaar Act, because of the interim orders passed by the SC, obtaining an Aadhaar number or enrollment number was voluntary, and hence there was no violation of any right;
ii. Section 59 of the Aadhaar Act protects all actions taken from the period between 2010 till the passage of the Aadhaar Act in 2016; 47 PART C iii. The judgments in MP Sharma and Kharak Singh being those of 8 and 6 judges respectively, holding that the right to privacy is not a fundamental right, judgments of smaller benches delivered during the period upto Puttaswamy would be per incuriam. Hence, the State need not have proceeded on the basis that a law was required for the purpose of getting an Aadhaar number or an enrolment number. As a result, the administrative actions taken would be valid as well as the receipt of benefits and subsidies by the beneficiaries; iv. Subsequent to the Aadhaar Act, the petitioners would have to establish that one or more of the tests laid down by the nine judge bench in Puttaswamy render the invasion of privacy resulting from the Aadhaar Act unconstitutional. The tests laid down in Puttaswamy have been satisfied and hence the Aadhaar Act is not unconstitutional for the following reasons:
a. The first condition in regard to the existence of a law has been satisfied;
b. Legitimate state interests such as preventing the dissipation of social welfare benefits, prevention of money laundering, black money and tax evasion, and protection of national security are satisfied through the Act;
48 PART C c. The Aadhaar Act satisfies the test of proportionality by ensuring that a “rational nexus” exists between the objects of the Act and the means adopted to achieve its objects; and d. For the purpose of testing legitimate State interest and proportionality, the Court must take note of the fact that each one of the subsidies and benefits under Section 7 is traceable to rights under Article 21 of the Constitution - such as the right to live with human dignity, the right to food, right to shelter, right to employment, right to medical care and education. If these rights are juxtaposed with the right to privacy, the former will prevail over the latter.
v. The Aadhaar Act was validly passed as a Money Bill on the following grounds:
a. The term ‘targeted delivery of subsidies’ contemplates an expenditure of funds from the Consolidated Fund of India, which brings the Aadhaar Act within the purview of a Money Bill under Art. 110 of the Constitution; b. Sections 7, 24, 25 and the Preamble of the Act also support its classification as a Money Bill;
c. The Aadhaar Act has ancillary provisions, but they are related to the pith and substance of the legislation which is the targeted delivery of subsidies and benefits; and d. Section 57 of the Act is saved by Article 110 (1) (g) of the Constitution as it is a standalone provision and even if a Bill is not covered under 49 PART C clauses (a) to (f) of Article110(1), it can still be covered under Article110 (1) (g).
Mr Tushar Mehta, learned Additional Solicitor General, submitted: i. Section 139AA of the Income Tax Act, was examined in Binoy Viswam in the context of Article 19 and fulfills the three tests laid down under Puttaswamy as well as the test of manifest arbitrariness laid down in Shayara Bano v Union of India50;
ii. The demographic information that is required for Aadhaar enrollment is already submitted while obtaining a PAN card and therefore individuals do not have a legitimate interest in withholding information; iii. Linking Aadhaar to PAN is in public interest on the following grounds:
a. The State has a legitimate interest in curbing the menace of black money, money laundering and tax evasion, often facilitated by duplicate PAN cards, and the linking of Aadhaar to the PAN card will ensure that one person holds only one PAN Card, thereby curbing these economic offences;
b. Aadhaar-PAN linking is in public interest and satisfies the test of proportionality and reasonableness;
50 (2017) 9 SCC 1 50 PART C c. The individual interest gives way to a larger public interest and a statutory provision furthering state interest will take precedence over fundamental rights;
d. The Court must not interfere with the Legislature’s wisdom unless the statutory measure is shockingly disproportionate to the object sought to be achieved;
e. India is a signatory to various international treaties under which it has obligations to take action to curb the menace of black money and money laundering in pursuance of which measures including the amendments to inter alia the Income Tax Act and the PMLA Act and Rules thereunder, have been brought about by the legislature; f. Statutory provisions under Aadhaar Act and Income Tax Act are distinct and standalone. Moreover, the validity of one provision cannot be examined in the light of the other;
g. Ascribing a (mandatory or voluntary) character to the provisions of a statute is Parliament’s prerogative and cannot be questioned by courts; and h. Rule 9 of the amended PMLA Rules that mandates furnishing of an Aadhaar number to open a bank account is not ultra vires the Aadhaar Act. Similarly, the Rule that an existing bank account will become non- operational if not linked with Aadhaar within six months is not a 51 PART C penalty but a consequence to render the accounts of money launderers non-operational.
Mr Rakesh Dwivedi, learned Senior Counsel, has submitted: i. The right to privacy exists when there is a reasonable expectation of privacy. However, this reasonable expectation of privacy differs from one dataset to another since the Aadhaar Act draws a distinction between demographic information, optional demographic information (eg. mobile number), core biometric information (fingerprints and iris scans) and biometric information such as photographs; ii. Alternatively, the applicability of Article 21 has to be confined and limited to core biometric information;
iii. Fundamental rights are not absolute and can be restricted if permitted specifically. Article 21 expressly envisages deprivation by laws which seek to carry out legitimate objectives and are reasonable and proportionate;
iv. The Aadhaar Act does not cause exclusion because if authentication fails after multiple attempts, then the subsidies, benefits and services, can be availed of by proving the possession of an Aadhaar number, either by 52 PART C producing the Aadhaar card or by producing the receipt of the application for enrolment and producing the enrolment ID number; v. Section 7 of the Aadhaar Act protects the right to human dignity recognized by Article 21 of the Constitution by providing services, benefits and subsidies. The Aadhaar Act is a welfare scheme in pursuance of the State’s obligation to respect the fundamental rights to life and personal liberty; to ensure justice (social, political and economic) and to eliminate inequality (Article 14) with a view to ameliorate the lot of the poor and the Dalits;
vi. Socio-economic rights must be read into Part III of the Constitution since civil and political rights cannot be enjoyed without strengthening socio - economic rights;
vii. A welfare State has a duty to ensure that each citizen has access at least to the basic necessities of life. The idea of a socialist state under a mandate to secure justice- social, economic and political - will be completely illusory if it fails to secure for its citizens the basic necessities in life. There cannot be any dignity for those who suffer starvation, subjugation, deprivation and marginalization and those who are compelled to do work which is intrinsically below human dignity; 53 PART C viii. The Aadhaar number does not convert individuals to numbers. The Aadhaar number is necessary for authentication and it is solely used for that purpose. The petitioners have conflated the concepts of identity and identification. Authentication through a number is merely a technological requirement which does not alter the identity of an individual; ix. Even if there is a conflict between the right to privacy and the right to food and shelter, the Aadhaar Act strikes a fair balance. The Aadhaar Act ensures human dignity and the right to life and liberty, hence there would be no reasonable expectation of privacy and autonomy; x. The requirement to obtain an Aadhaar number under the Aadhaar Act does not reflect a lack of trust in citizens. Authentication by the State does not presume that all its citizens are dishonest. The provisions of the Aadhaar Act are merely regulatory in nature - similar to the process of frisking at airports or other offices - since there is no effective method to ensure targeted delivery;
xi. The “least intrusive test” is not applicable in the present case. The requirement that the least intrusive means of achieving the State object must be adopted, has been rejected by Indian courts in a catena of decisions as it involves a value judgment and second guessing the wisdom of the legislature. Such a test violates the separation of powers between the legislature and the judiciary; 54 PART C xii. Even assuming that the ‘least intrusive method’ test applies, the exercise of determining the least intrusive method of identification is a technical exercise and cannot be undertaken in a court of law; xiii. The Petitioners who have furnished smartcards as an alternative to the Aadhaar card, have not established that smartcards are less intrusive than the Aadhaar card authentication process; xiv. The ‘strict scrutiny test’ does not apply to the Aadhaar Act. That test is conceptualised in the United States, to be only applied to ‘suspect classifications’;
xv. Section 7 of the Aadhaar Act does not involve any waiver of fundamental rights;
xvi. There can be no assumption of mala fide against the government or the legislature. A mere possibility of abuse is not a ground to invalidate the Aadhaar Act;
xvii. Through Section 57, Parliament intended to make the use of the Aadhaar number available for other purposes due to the liberalization and privatization of the economy in areas earlier occupied by the government and public sector. Many private corporate bodies are operating parallel to and in competition with the public sector such as in banking, insurance, 55 PART C defence, and health. These are core sectors absolutely essential for national integrity, to the national economy and the life of people; xviii. Sections 2(g), and (j) read with Section 54(2)(a) and Section 54(1) do not suffer from excessive delegation of power to UIDAI and there are sufficient guidelines coupled with restrictions. The regulation making power of the Authority under the Act is limited by the use of the expression ‘such other biological attribute’ which will be interpreted ejusdem generis with the categories of information mentioned before namely, fingerprints and iris scan. These categories have certain characteristics: firstly, they do not contain genetic information; secondly, they are non-intrusive; thirdly, apart from carrying out authentication they do not reveal any other information of the individual; fourthly, these are modes of identification used for identifying a person even without digital technology; fifthly, they are capable of being used for instantaneous digital authentication; and sixthly, they are biological attributes enabling digital authentication. The addition of biological attributes, under Section 54, must mandatorily be laid before the Parliament under Section 55. This is an additional check on the regulation making power of UIDAI; xix. Under Section 2(k), which defines demographic information, certain sensitive categories of information such as ‘race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history’ of 56 PART C the person are excluded. The term ‘other relevant information’ has to be construed ejusdem generis and would have to be necessarily demographic in nature as contrasted with biometric information; xx. Aadhaar is necessary, as 3% of India’s GDP amounting to trillions of rupees is allocated by Governments towards subsidies, scholarships, pensions, education, food and other welfare programmes. But approximately half of if does not reach the intended beneficiaries. Aadhaar is necessary for fixing this problem as no other identification document is widely and commonly possessed by the residents of the country and most of the other identity documents do not enjoy the quality of portability;
xxi. The enrolment and authentication processes under the Aadhaar Act are strongly regulated so that the data is secure; xxii. The security of the CIDR is also ensured through adequate measures and safeguards;
xxiii. The Aadhaar Act ensures that UIDAI has control over the requesting entity during the authentication process; xxiv. Enrolment Regulations ensure that the requirement of informed consent of individuals is fulfilled while securing the Aadhaar card in the following ways:
57 PART C a. Firstly, the resident is given an opportunity of verifying his or her information for accuracy before uploading; b. Secondly, the details and the supporting documents are provided by the resident, or an introducer (in specific cases); c. Thirdly, the enrolling agency is obliged to inform the individual about the manner in which the information shall be used, the nature of recipients with whom the information is to be shared during authentication; and the existence of a right to access information, the procedure for making request for such access and details of the person/ department to whom a request can be made; and d. Fourthly, the uploading of information is done in the presence of the individual.
xxv. When an individual makes a choice to enter into a relational sphere then his or her choice as to mode of identification would automatically get restricted on account of the autonomy of the individuals or institution with whom they wish to relate. This is more so where the individual seeks employment, service, subsidy or benefits; xxvi. The Central government has the power to direct the linking of Aadhaar card, with SIM card, as it is proportional to the object sought to be achieved in the interest of national security; 58 PART C xxvii. Regarding the process of authentication and metadata retained under the Act, it is submitted:
a. The only purpose of the Aadhaar project is authentication and there is no power under the Act to analyze data;
b. The Aadhaar Act does not involve big data or learning algorithms. It merely utilizes a matching algorithm for the purpose of authentication; c. Metadata contemplated is process or technical metadata and does not reveal anything about the individual. Section 2(d) of the Act defines “authentication record” to mean the record of the time of authentication, identity of the RE and the response provided by the Authority”, and the relevant authentication regulation, Regulation 26, does not go beyond the scope of Section 2(d) of the Act; d. Moreover, Regulation 26 and Section 32(3) of the Act prohibit the Authority from collecting or storing any information about the purpose of authentication; and e. Only limited technical metadata is required to be stored in an effort to exercise control over REs by way of audits.
xxviii. Regarding the security of the Aadhaar data, it is submitted:
a. The provisions of the Information Technology Act, 2000 and the punitive measures provided there are made applicable to Aadhaar data under Section 30 of the Aadhaar Act; and 59 PART C b. Anyone attempting to gain unauthorized access to the CIDR faces stringent punishment, including imprisonment upto 10 years.
xxix. On the control exercised by the Authority over the Requesting Entities (RE), the following was urged before the Court: a. The standard of control exercised by the Authority on the Requesting Entities is ‘fair and reasonable’ as laid down under Article 21 of the Constitution;
b. This control includes requirements that the RE’s procure the fingerprint device from vendors controlled by the Authority, with the Authority also providing the hardware and software of the device. The device is subject to quality checks, and must be certified by the Authority before being used by the RE. The Authority also takes measures to ensure that data is sent to it in an encrypted form; c. The license is given to the RE from the Authority only after an audit of the RE is conducted, and the audit report is approved; and d. The data collected by these REs is segregated and there exists no way of aggregating this data. During authentication requests, the full identity information of the individual will never be transmitted back to the REs by the Authority as there exists a statutory bar from sharing Biometric information under Sections 29 (1) (a) and 29(4) of the Act. 60 PART C xxx. UIDAI has entered into licensing agreements with foreign biometric solution providers (BSP) for software. Even though the source code of the software is retained by the BSP as it constitutes their intellectual property, the data in the server rooms is secure as the software operates automatically and the biometric data is stored offline. There is no opportunity available to the BSP to extract data as they have no access to it;
xxxi. Prior to the enactment of the Aadhaar Act, the Aadhaar project was governed by the provisions of the Information Technology Act, 2000. Section 72A of the Information Technology Act, 2000 provides for punishment for disclosure of information in breach of law or contract; xxxii. The architecture of the Aadhaar Act does not enable any real possibility, proximate or remote, of mass surveillance in real time by the State; xxxiii. The giving of identity information and undergoing authentication has no direct and inevitable effect on Article 19(1)(a). Alternatively, even if Article 19(1)(a) is attracted, Article 19(2) would protect Section 7 of the Aadhaar Act as it has a direct and proximate nexus to public order and security of the State;
xxxiv. In response to the argument that the requirements of Aadhaar number and authentication for benefits, services and subsidies would be ultra 61 PART C vires Article 243-G and items 11, 12, 16, 17, 23, 25 and 28 of the XIth Schedule, it is submitted that the Panchayats get only such powers as are given to it by the legislature of the State. Article 243-G is merely enabling. There is no compulsion upon the State to endow the Panchayats with powers relating to the items specified in the XIth Schedule;
xxxv. On the validity and purpose of Section 57, it is urged:
a. Section 57 is not an enabling provision. It merely provides, as it states, that the provisions of the Act would not prevent the use of Aadhaar for other purposes;
b. However, Section 57 imposes a limitation on any such use for other purposes, that the use must be sanctioned by any law in force or any contract;
c. Another limitation is presented by the proviso to Section 57, which says that the use of the Aadhaar number shall be subject to the procedure and obligations under Section 8 and Chapter VI, which would necessarily also subject it to the operation of Chapter VII (dealing with Offences & Penalties) of the Act;
d. Under Section 57, the State, a body corporate or any other person cannot become Requesting Entities unless the limitations provided for under Section 57 are complied with;62
PART C e. Section 57 imposes limitations, and the use is backed by authentication, protection of information and punitive measures; f. The expressions ‘pursuant to any law or any contract’, and ‘to this effect’- necessarily entail that where the State makes a law or any body corporate enters into a contract, the law or contract should be prior in point of time to the making of any application for becoming a Requesting Entity or a Sub-Authentication User Agency under Regulation 12 of the Authentication Regulations; and g. A large number of small service providers simply cannot become Requesting Entities under Section 57, as they will not meet the rigorous standard demanded by the eligibility conditions which are prescribed by the Regulations to become Authentication User Agencies (AUA)/ KYC User Agencies (KUA). Therefore, this provision does not create a situation whereby the common man is required to undergo authentication in all activities. xxxvi. The Aadhaar Act is not exclusionary but inclusionary since it provides all citizens the bare necessities for a dignified existence; xxxvii. Having the option to opt-out is not a constitutional requirement. Mr Neeraj Kishan Kaul, learned Senior Counsel, made the following submissions:
63 PART C i. Aadhaar is a speedy and reliable tool for identification and authentication and there is no reason to hold it invalid;
ii. Private entities and AUAs/KUAs that have built their businesses around it should be allowed to use Aadhaar authentication services; iii. Section 57 is an enabling provision and private players should be given the choice to use the Aadhaar authentication services as a tool for verification if there is a consensus between private players’ and their customers;
iv. Aadhaar authentication has benefited women in villages and migrants and increased the reach of microfinance institutions, thus reducing predatory financing; and v. A statute cannot be struck down on the ground that there is scope for misuse.
Mr Jayant Bhushan, learned Senior Counsel appearing for the Reserve Bank of India urged the following submissions before the Court: i. RBI, in exercise of its powers under the Banking Regulation Act, 1949 and Rule 9 of the PMLA Rules, 2005 issued an amended Master Circular on April 20, 2018 which mandates that Aadhaar has to be submitted to a Reporting Entity. This circular conforms with the PMLA rules; 64 PART C ii. Rule 9(14) of the PMLA Rules provides that the Regulator- the RBI in this case, lay down guidelines incorporating the requirements of sub-rules 9(1)-(13), which would include enhanced or simplified measures to verify identity; and iii. The requirement of submission of Aadhaar to the RE is in exercise of this power under Rule 9(14).
Mr Gopal Sankarnarayanan, learned counsel, has submitted: i. The Aadhaar Act as a whole does not violate the fundamental right to privacy;
ii. The factors that save the Aadhaar Act from failing the proportionality test are (a) Voluntariness to subject one ’s identity information to obtain the Aadhaar ; (b) Informed consent when such identity information is utilized; and (c) A draw on the Consolidated Fund of India; iii. Right to identity is a fundamental right as a part of the right to dignity, which is being realized by the Aadhaar Act;
iv. The right to identity is also recognized under India’s international obligations under instruments such as the UDHR and ICCPR; v. In view of the large scale enrolments that have already taken place and the expenditure incurred by the Government out of public funds, it would 65 PART C be in overarching public interest to give Section 59 full effect. If this were not done, the only avenue available to the Government would be to undertake the mammoth enrolment task all over again under a new regime, affording only a pyrrhic victory to the Petitioners, while there would be substantial revenue losses to the Government and deprivation of beneficial schemes to those eligible, in the meanwhile; vi. Certain provisions of the Aadhaar Act have to be struck down or read down so that the Act as a whole can continue to serve its essential purpose - namely Sections 47, Section 8(4) and Section 29(2) of the Act; and vii. Section 139AA of the Income Tax Act, 1961 violates Article 14 and 21 of the Constitution.
Mr Zoheb Hossain, learned Counsel, made the following submissions: i. The right to privacy cannot be asserted vicariously on behalf of others in a representative capacity in a Public Interest Litigation, because unlike other constitutional rights, right to privacy is a personal right. No Section 7 beneficiary has claimed a violation of their right to privacy despite the pendency of the petitions for 6 years before this Court and therefore, the Petitioners' challenge, in a representative capacity, to section 7 on the 66 PART C ground of a violation of the right to privacy of third parties is not maintainable;
ii. There is no increased threat to privacy due to Aadhaar at the level of requesting entities (RE) for the following reasons: a. REs are already in possession of personal information of individuals and inclusion of Aadhaar does not in any manner increase the threat to privacy;
b. Any information disclosed by REs will not be on account of Aadhaar and will have to be dealt with under domain specific legislations, or a data protection regime or agreements between the REs and their customers; and c. REs have data of their own customers and not of other REs’ customers, so there is no possibility of surveillance. iii. Safeguards against disclosure of information in the Aadhaar Act are superior to the safeguards laid down in the PUCL case51. Sections 8, 28 and 29 along with Chapter VII which deals with Offences and Penalties, provide for protection of information and Section 33 lays down a strict procedure for disclosure. Even though the Aadhaar Act is not required to meet the same standard as laid down in PUCL, the safeguards in the Act are not only adequate with regard to identity information and authentication records, but far exceed the safeguards laid down PUCL; 51 (2011) 14 SCC 331 67 PART C iv. The petitioners cannot contend that Section 33(2) of the Aadhaar Act goes against the principles of natural justice and is disproportionate (as it does not define the term “national security”) for the following reasons: a. What is in the interest of “national security” is not a question of law but that of policy lying in the executive domain; and b. Principles of natural justice cannot be observed strictly in a situation implicating national security. In such cases, it is the duty of the court to read into and provide for statutory exclusion. v. The laws, which are under challenge, are a part of a concerted scheme to promote redistributive justice and ensure substantive equality, in furtherance of Articles 14, 38, 39B and 39C. These laws ensure a more transparent and a cleaner system, root out revenue leakages and evasion of taxes, thereby giving genuine beneficiaries their rightful share in subsidies;
vi. The object of the Aadhaar Act, contrary to what the petitioners have argued, is totally unrelated to suppression of freedom of speech and any incidental effect, if at all, would not implicate the right under Article 19(1)(a);
vii. The petitioners cannot contend that Section 47 of the Aadhaar Act is arbitrary or unreasonable for the following reasons: 68 PART C a. The offences and penalties under the Act are intended to maintain the purity of data of the Aadhaar number holder and the integrity of the CIDR, which are integral in achieving the object of the Act; b. Enrolment, storage of data in CIDR, and authentications are so vast and inherently technical that any breach of the provisions, can be effectively dealt with by the UIDAI;
c. The individual has not been left remediless, as he/she can make a complaint to the UIDAI directly or through the grievance redressal centre [Regulation 32 of the Aadhaar (Enrolment and Update) Regulations, 2016]. After a complaint has been made, the UIDAI would be obliged to examine the complaint and accordingly lodge a complaint in a Court in terms of Section 47 of the Aadhaar Act; d. Section 56 of the Aadhaar Act makes it clear that application of other laws, like the IT Act, is not barred.
viii. Aadhaar must be made mandatory under Section 7 of the Aadhaar Act for the following reasons:
a. Because of the involvement of biometrics, it is almost impossible for one person to obtain two Aadhaar numbers. This will help in checking the entry of fake and duplicate beneficiaries into any welfare scheme; b. Other methods which were employed over the last 70 years to check duplication, siphoning of money in welfare schemes, large-scale tax evasion, generation of black money, and appearance and re- 69 PART C appearance of duplicates, have turned out to be futile. If Aadhaar is made voluntary, the same problems are likely to creep back into the system; and c. The State is bound to deploy the best technology available to it to ensure proper allocation of resources as there is a constitutional mandate upon the State under Article 14 to efficiently utilize its resources.
ix. There is no conflict between the Aadhaar Act and the Income Tax Act as they are both stand alone laws and their scope of operation is different; x. Through the Aadhaar Act, the State is furthering the following obligations under Part III and Part IV of the Constitution and international obligations: a. The State has a positive obligation for securing socio-economic rights like the basic right to food, shelter and livelihood of people arising out of Article 21, even though it is worded negatively; b. The Supreme Court has observed that civil & political rights and socio- economic rights in India are placed on the same pedestal [PUCL]. Aadhaar is a means of achieving the latter set of rights. The proportionality analysis would therefore require a balancing of rights in this context;
70 PART C c. Articles 38, 39(b), (c), (e), (f), 41, 43, 47 and 51(c) impose a constitutional mandate on the State to ensure effective and efficient utilization of public resources;
d. The State is the trustee of public resources towards people, and inaction of the State to plug the continuous leakage of public resources and revenues would violate both, the principle of non- arbitrariness and reasonableness envisaged by Article 14 as well as the constitutional doctrine of public trust; and e. The creation of Aadhaar infrastructure and enactment of the Aadhaar Act is a step towards the government pursuing India’s international obligations under the ICESCR.
xi. While testing proportionality, reasonableness of a restriction has to be determined in an objective manner from the standpoint of the interests of the general public and not from the perspective of an individual right bearer claiming invasion52; and xii. With regard to the alleged conflict between Section 29(2) of the Aadhaar Act and Section 4(b)(xii) of the RTI Act, the former cannot be struck down as unconstitutional for the following reasons: 52 Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7 SCC 353. 71 PART D a. A provision can be struck down only if it is in violation of the Constitution or if the legislature lacks competence, not on the ground that it is in conflict with another law;
b. In any case, the obligations of public authorities under both these provisions are different, as the public authority under the RTI Act can publish the details of beneficiaries from the existing database and the information received by the UIDAI is not required to be shared or displayed publicly. However, if any information is displayed publicly, it can be challenged by an aggrieved person on the ground of privacy which would be completely unrelated to the present challenge; c. The two laws operate in their distinct fields and there is no conflict between them; and d. A conflict between two statutes is required to be reconciled through harmonious construction. However, since there is no conflict between these two laws, there is no need for harmonious construction. D Architecture of Aadhaar: analysis of the legal framework 39 The architecture of the Aadhaar Act envisages the creation of a unique identity for residents on the basis of demographic and biometric information. The Act envisages a process of identification by which the unique identity 72 PART D assigned to each individual is verified with the demographic and biometric information pertaining to that individual which is stored in a centralised repository of data known as the Central Identities Data Repository (CIDR). The former part of the legislative design is implemented by its regulatory provisions governing enrolment53 of individuals who would be allotted a unique identity number. The latter part of the legislative design consists of the process of ‘authentication’.
40 In order to facilitate an understanding of the key aspects of the law, Section 2 provides a dictionary of meanings. ‘Aadhaar number’ is defined in Section 2(a) as the identification number issued to the individual under sub- section (3) of Section 3. The individual to whom an Aadhaar number is issued is described in Section 2(b) as the ‘Aadhaar number holder’. The expression ‘authentication’ is defined in Section 2(c) thus:
“(c) “Authentication” means the process by which the Aadhaar number alongwith demographic information or biometric information of an individual is submitted to the Central Identities Data Repository for its verification and such Repository verifies the correctness or lack thereof, on basis of information available with it.” Section 2(d) speaks of the ‘authentication record’ as the record of the time of authentication, the identity of the requesting entity and the response provided by UIDAI. The crucial definitions are those of ‘biometric information’, ‘core 53 Section 2(m) states: “enrolment” means the process, as may be specified by regulations, to collect demographic and biometric information from individuals by the enrolling agencies for the purpose of issuing Aadhaar numbers to such individuals under this Act.73
PART D biometric information’, ‘demographic information’ and ‘identity information’. These are as follows:
“(g) “biometric information” means photograph, finger print, Iris scan, or other such biological attributes of an individual as may be specified by regulations;
...
(j) “core biometric information” means finger print, Iris scan, or such other biological attribute of an individual as may be specified by regulations;
(k) “demographic information” includes information relating to the name, date of birth, address and other relevant information of an individual, as may be specified by regulations for the purpose of issuing an Aadhaar number, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.
...
(n) “identity information” in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information.” The largest subset of the above definitions consists of ‘identity information’ which is defined in an inclusive sense to comprehend the Aadhaar number, biometric information and demographic information. Demographic information is defined as information related to the name, date of birth and address and other information pertaining to an individual as is specified by the regulations. Significantly, Section 2(k) excludes, by a mandate, race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history from the purview of demographic information. Biometric information consists, under Section 2(g), of the photograph, fingerprint, Iris scan, or other such biological attributes of an individual as may be specified by regulations. Core biometric information in Section 2(j) excludes photographs (which form part of biometric 74 PART D information). Apart from photographs, other biometric information is comprehended within core biometric information and may be expanded to include other biological attributes specified in the regulations to be made under the Act.
41 The identity information of an individual is stored in a central depository. Section 2(h) defines “Central Identities Data Repository” as a centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number holders along with the corresponding demographic information and biometric information of such individuals and other related information. The CIDR is the backbone of the Aadhaar Act. All the information collected or created under the Act is stored in it. For the establishment and maintenance of the CIDR, it has been provided54 under the Act that UIDAI may engage one or more entities, which can also perform any other functions as may be specified by regulations. The Act does not prohibit the engagement of private entities for the establishment and maintenance of the CIDR. 42 Section 3, pertains to the entitlement to obtain an ‘Aadhaar Number’, which forms a part of Chapter II titled ‘enrolment’. Section 3 comprises of three parts: (i) an entitlement of every resident to obtain an Aadhaar number;
(ii) a requirement of submitting demographic and biometric information to be enrolled; and (iii) a process of undergoing enrolment. Section 3 provides thus: 54 Section 10, Aadhaar Act 75 PART D “Section (3): Aadhaar Number.-
(1) Every resident shall be entitled to obtain an Aadhaar number by submitting his demographic information and biometric information by undergoing the process of enrolment:
Provided that the Central Government may, from time to time, notify such other category of individuals who may be entitled to obtain an Aadhaar number. (2) The enrolling agency shall, at the time of enrolment, inform the individual undergoing enrolment of the following details in such manner as maybe specified by regulations, namely:-
(a) The manner in which the information shall be used;
(b) The nature of recipients with whom the information is intended to be shared during authentication; and
(c) The existence of a right to access information, the procedure for making requests for such access and details of the person or department in-charge to whom such requests can be made.