263 A. Cavoukian, Privacy and Biometrics, Information and Privacy Commissioner Canada (1999), available at http://www.ipc.on.ca/images/Resources/pri-biom.pdf 264 Robert Gellman. Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August 2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0. pdf 217 PART F “The definition of privacy in any jurisdiction must take into account cultural, historical, legal, religious and other local factors. One size may not fit all countries, regions, or cultures when it comes to privacy or to some elements of privacy. In addition, views of privacy change as time passes and technology advances. However, different perspectives are not a barrier to evaluating privacy but a challenge.”265 The relationship between biometrics and privacy is completely shaped by the design of the systems and the framework within which private and personal data is handled. Unfortunately, particularly in developing countries the adoption of biometrics has not been accompanied by an adequate discussion of privacy concerns.266 Biometrics can also be a “staunch friend of privacy” when the technology is used for controlling access and to restrict unauthorized personnel from gaining access to sensitive personal information. 267 While evaluating privacy consequences of biometric technology, it is also important to bear in mind that there cannot be an assumption that current privacy protections which may be appropriate for the present state of technology will also be sufficient in the future.268 Technology will continue to develop as will the need to develop corresponding privacy protections. Concerns around privacy and data protection will have to be addressed. “Fair Information Practices (FIPs), Privacy by Design (PbD), and Privacy Impact Assessments (PIAs)”269 might be useful in addressing these concerns. FIPs offer the substantive content for a privacy policy. PbD offers a proactive approach to 265 Ibid 266 Ibid 267John D Woodward, Biometrics: Identifying Law & Policy Concerns, in Biometrics (AK Jain A.K, R Bolle, and S Pankanti eds.), Springer (1996) 268Robert Gellman, Privacy and Biometric ID Systems: An Approach Using Fair Information Practices for Developing Countries, CGD Policy Paper 028 Washington DC: Centre for Global Development (1 August, 2013), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0.pdf 269Ibid 218 PART F the protection of privacy that relies on advance planning rather responding to problems after they arise. PIAs offer a formal way to consider and assess the privacy consequences of technology or other choices, including consideration of alternatives early in the planning stages. These three methodologies are not mutually exclusive and can be combined to achieve the just and optimal result for society.270 156 Of particular significance is the “Do Not Harm” principle which means that biometrics and digital identity should not be used by the issuing authority, typically a government, or adjacent parties to serve purposes that could harm the individuals holding the identification.271 Identity systems, whether in paper or digital, must work for the public good and must do no harm. However, identity systems due to their inherent power, can cause harm when placed into hostile hands and used improperly. Great care must be taken to prevent this misuse. “Do No Harm” requires rigorous evaluation, foresight, and continual oversight.272 157 There are many adversarial actors – from private espionage groups to foreign governments, who may try to exploit data vulnerabilities. There is also the threat of abuse of power by future governments. However, creating and instilling strong privacy protection laws and safeguards may decrease these 270 Ibid 271Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and its inability to protect privacy in relation to measures in Europe and the U.S., Health and Technology, Vol. 7 (2017), at pages 539–567 272 Ibid 219 PART G risks- such as the framework provided by the EUGDPR273. In order to uphold democratic values, the government needs to curtail its own powers concerning the tracking of all citizens and prevent the needless collection of data. Such protections may assuage the fears and uphold the long-term legitimacy of Aadhaar. If the legislative process takes into account public feedback and addresses the privacy concerns regarding Aadhaar, it would provide a solid basis for more digital initiatives, which are imminent in today’s digital age. However, in its current form, the Aadhaar framework does not address the privacy concerns issues discussed in this section of the judgment.
G Legitimate state aim G.I Directive Principles 158 The Union government has contended that the legitimate state interest
in pursuing the Aadhaar project flows from the solicitous concern shown in the text and spirit of the Constitution for realising socio-economic rights. The right to food must, according to the view proposed before the Court, trump over the right to privacy. The Aadhaar project, it has been urged, seeks to fulfil socio- economic entitlements.
159 The Constituent Assembly did not work in a vacuum. The idealism with which the members of the Assembly drafted the Constitution was the result of 273 General Data Protection Regulation, available at https://gdpr-info.eu/ 220 PART G the “social content of the Independence movement”274, which came from the awareness of the members about the existing conditions of the Indian masses. Granville Austin has therefore referred to the Constitution as a “social document” and a “modernizing force”, whose provisions reflect “humanitarian sentiments”.275 The Constitution was the medium through which the nascent Indian democracy was to foster many goals. Austin observes:
“Transcendent among [the goals] was that of social revolution. Through this revolution would be fulfilled the basic needs of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of Indian society.”276 (Emphasis supplied) Austin has further observed:
“The first task of [the] Assembly… [was] to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.”277 In his work titled “The Constitution of India: A Contextual Analysis”, Arun K Thiruvengadam identified one such goal of the Constitution as follows:
“The Indian Constitution sought to lay the blueprint for economic development of the vast subcontinental nation, which was an imperative for a populace that was largely illiterate, poor and disproportionately situated in rural societies that had limited access to many essential social goods and infrastructural facilities.278” .
“By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, 274 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page xxii 275 Ibid, at pages 62, xiii and xxii 276 Ibid, at page xxi 277 Ibid, at page 32 278 Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis, (Bloomsbury 2017), at page 1 221 PART G between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate ‘the powers of all men equally for contributions to the common good’.”279 (Emphasis supplied) 160 The draftpersons of the Constitution believed that the driving force to bring social change rested with the State. This is evident from an instance during the proceedings of the Constituent Assembly. Dr. B R Ambedkar had submitted to the Assembly a social scheme to be incorporated into the Constitution, which included provisions to cover every adult Indian by life insurance. However, his social scheme was rejected on the ground that such provisions should be left to legislation and need not be embodied into the Constitution.280 161 The social and economic goals which were contemplated at the time of Independence remain at the forefront of the State’s agenda even today.
Certain parts of the Constitution play a leading role in declaring the blueprint of its social intent. Directive Principles were specifically incorporated into the Constitution for this purpose. Though not enforceable in courts, the principles are “fundamental in the governance of the country” and it is the duty of the State to apply these principles while making laws.281 The essence of the Directive Principles lies in Article 38 of the Constitution, which places an obligation on the State to secure a social order for the promotion of the 279 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page 66 280 Ibid, at page 99 281 Article 37, The Constitution of India 222 PART G welfare of the people. Titled as Part IV of the Constitution, the Directive Principles are symbolic of the welfare vision of the Constitution makers. Article 38 of the Constitution provides that :
“(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” Clauses (b), (c), (e) and (f) of Article 39 provide thus :
“39. The State shall, in particular, direct its policy towards securing -
...
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
..
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.” Article 41 speaks of the right to work, to education, and to public assistance :
“41. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases 223 PART G of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” Article 43 contemplates a living wage and conditions of work which provide a decent standard of life:
“43. The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.” Article 47 casts a positive obligation upon the State to raise the level of nutrition and the standard of living and to improve public health, as among its primary duties. Reflecting a constitutional vision of socio-economic justice, the values adopted in the Directive Principles are to be progressively realised in the course of social and economic development.
162 In a recently published book titled “Supreme Court of India: The Beginnings”, George H Gadbois, Jr. observes that the Indian Constitution, “easily the lengthiest fundamental law in the world, probably ranks also as one of the most eclectic ever produced”.282 Reflecting upon the constitutional models from which the draftspersons of India’s Constitution drew sustenance, Gadbois states:
“The Constitution makes provision for a parliamentary system adapted from the British model, a federation patterned after the Government of India Act of 1935 and the Canadian 282George H Gadbois, JR, Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds.), Oxford University Press (2017), at page 193 224 PART G Constitution, a set of emergency powers similar to those set forth in the Weimar Constitution, a lengthy list of fundamental rights adapted from the American experience with a Bill of Rights, a Supreme Court endowed with express powers of judicial review for which the American Supreme Court served as the model, and list of “Directive Principles of State Policy” patterned after the Constitution of Eire.”283 Reflecting on the Directive Principles, Gadbois observes:
“Suffice to say that the directive principles have provided the constitutional basis and justification for the Government’s efforts to establish a welfare state, or, to use the designation preferred by Indian leaders, a “socialist pattern of society”.284 The sanction behind the Directives, according to him “is political and not juridical”. On the other hand, the fundamental rights are justiciable because Article 13 provides that a law which takes them away or abridges them will be void. The conflict as Gadbois sees it is this:
“the directive principles are a set of instructions to the Government of the day to legislate into being a welfare state, which means, of course, an emphasis on the social and economic uplift of the community at large and a corresponding subtraction from individual rights. It is the duty of the Government to apply these principles in making laws. In short, the Constitution confers upon the Supreme Court the task of making the fundamental rights meaningful against possible infringements by the legislatures and executives, and makes it obligatory for the Government to bring about changes in the social and economic life of the nation, changes which were bound to affect adversely some private rights.
It is conceivable at least, that both the Supreme Court and the Government could have pursued their respective tasks without conflict, but this did not happen. The legislatures, purporting to be doing no more than carrying out the duties prescribed in the directive principles, enacted legislation which the Supreme Court found to be in conflict with some of the fundamental rights.”285 283 Ibid, at pages 193-194 284 Ibid, at page 195 285 Ibid, at pages 195-196 225 PART G This formulation by Gadbois formed part of a dissertation in April 1965. The evolution of jurisprudence in India since then has altered the Constitutional dialogue. Over time, the values enshrined in the Directive Principles have been read into the guarantees of freedom in Part III. In incremental stages, the realisation of economic freedom has been brought within the realm of justiciability, at least as a measure of the reasonableness of legislative programmes designed to achieve social welfare.
163 As our constitutional jurisprudence has evolved, the Directive Principles have been recognised as being more than a mere statement of desirable goals. By a process of constitutional interpretation, the values contained in them have been adopted as standards of reasonableness to expand the meaning and ambit of the fundamental rights guaranteed by Part III of the Constitution.286 In doing so, judicial interpretation has attempted to imbue a substantive constitutional content to the international obligations assumed by India in the Universal Declaration of Human Rights and the International Covenant on Economic and Social and Cultural Rights. Eradicating extreme poverty and hunger is a significant facet of the Millennium Development Goals of the United Nations. Social welfare legislation is but a step to achieve those goals. The enactment of the National Food Security Act 2013 constituted a milestone in legislative attempts to provide food security at the household level. The Act discerns a targeted Public Distribution System for providing food-grains to those below the poverty line. The rules contemplated in Section 286 Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625 226 PART G 12(2)(b), incorporate the application of Information and Communication Technology tools to ensure transparency of governance and prevent a diversion of benefits. Another important piece of legislation has been the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) Act 2005 which was enacted for the enhancement of livelihood and security of rural households. The Act guarantees a hundred days of wage employment in every financial year to at least one able-bodied member of every household in rural areas in public works programmes designed to create public assets. Both the National Food Security Act 2013 and the MGNREGA Act 2005 follow a rights-based approach in dealing with endemic problems of poverty and deprivation in rural areas. Leveraging Aadhaar for biometric identification of beneficiaries, it has been argued by the respondents, is an intrinsic part of the legislative effort to ensure that benefits in terms of food security and employment guarantee are channelised to those for whom they are meant.
G.2 Development and freedom 164 Many scholars have delved into the substantive themes of the Indian
Constitution. Upendra Baxi has argued that the Indian Constitution has four sovereign virtues: “rights, justice, development, and governance”287. Baxi notes that they are “intertwined and interlocked with the rest and, in contradictory combination/recombinations with both the constitutional and 287Upendra Baxi, “A known but an indifferent judge”: Situating Ronald Dworkin in contemporary Indian jurisprudence, International Journal of Constitutional Law, (2003) at page 582 227 PART G social past and their future images”.288 Development is a leading aspect of our constitutional vision. Development in the constitutional context is not only economic development assessed in terms of conventional indicators such as the growth of the gross domestic product or industrial output. The central exercise of development in a constitutional sense is addressing the “deprivation, destitution and oppression”289 that plague an individual’s life. 165 In a traditional sense, freedom and liberty mean an absence of interference by the state into human affairs. Liberty assumes the character of a shield. The autonomy of the individual is protected from encroachment by the state. This formulation of political rights reflects the notion that the state shall not be permitted to encroach upon a protected sphere reserved for individual decisions and choices. What the state is prevented from doing is couched in a negative sense. Civil and political rights operate as restraints on state action. They postulate a restriction on the state. Isaiah Berlin formulates the negative conception of liberty thus:
“I am … free to the degree to which no man or body of man interferes with my activity. Political liberty is simply the area within which a man can act unobstructed by others.”290 166 Individual freedom, in this conception, imposes a duty of restraint on the state. Modern ideas of neo liberalism have funnelled this notion. Neo-
liberalism postulates that the increasing presence of the state is a threat to 288 Ibid 289 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page xii 290 Isaiah Berlin, Two Concepts of Liberty, available at http://faculty.www.umb.edu/steven.levine/courses/Fall%202015/What%20is%20Freedom%20Writings/Berlin.p df 228 PART G individual autonomy. A free market economy with minimum state control, in this view, is regarded as integral to protecting individual rights and freedoms. FA Hayek construes the content of liberty as meaning the absence of obstacles. Resultantly, this notion of liberty regards the role of the state in a narrow jurisprudential frame. Attempts by the state to pursue social justice or to use its authority for redistribution of wealth would in this conception not be a legitimate use of state power.291 167 The notion that liberty only consists of freedom from restraint does not complete the universe of its discourse. Broader notions of liberty are cognizant of the fact that individuals must be enabled to pursue their capacities to the fullest degree. Social and economic discrimination poses real barriers to access education, resources and the means to a dignified life. This approach to understanding the content of freedom construes the ability to lead a dignified existence as essential to the conception of liberty and freedom. The integral relationship between removal of socio-economic inequality and freedom has been eloquently set out by Amartya Sen in “Development as Freedom”292:
“Development requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states. Despite unprecedented increases in overall opulence, the contemporary world denies elementary freedoms to vast numbers – perhaps even the majority-of people. Sometimes the lack of substantive freedoms relates directly to economic poverty, which robs people of the 291 F A Hayek, The Constitution of Liberty, Routledge & Kegan Paul, (1960) at pages 11, 207-208 292 Amartya Sen, Development as Freedom, Oxford University Press (2000) at page 3-4 229 PART G freedom to satisfy hunger, or to achieve sufficient nutrition, or to obtain remedies for treatable illnesses, or the opportunity to be adequately clothed or sheltered, or to enjoy clean water or sanitary facilities. In other cases, the unfreedom links closely to the lack of public facilities and social care, such as the absence of epidemiological programs, or of organized arrangements for health care or educational facilities, or of effective institutions for the maintenance of local peace and order. In still other cases, the violation of freedom results directly from a denial of political and civil liberties by authoritarian regimes and from imposed restrictions on the freedom to participate in the social, political and economic life of the community.” In Sen’s analysis, human development is influenced by economic opportunities, political liberties, social powers, and the enabling conditions of good health, basic education, and the encouragement and cultivation of initiatives. Taking it further, Sen has recognized an important co-relation in terms of the non-availability of basic economic conditions:
“Economic unfreedom, in the form of extreme poverty, can make a person a helpless prey in the violation of other kinds of freedom… Economic unfreedom can breed social unfreedom, just as social or political unfreedom can also foster economic unfreedom.”293 168 The notion of freedom as an agency has been developed by Sen as part of the ‘capability theory’. The necessary consequence of focusing upon major sources of unfreedom, in a social and economic perspective, is that the removal of these restraints is essential to the realization of freedom. If true freedom is to be achieved through the removal of conditions which cause social and economic deprivation, the role of the state is not confined to an absence of restraint. On the contrary, the state has a positive obligation to 293 Ibid, at page 8 230 PART G enhance individual capabilities. Martha Nussbaum294 argues that realising freedom requires the state to discharge positive duties. Nussbaum expresses a threshold level of capability below which true human functioning is not available. Freedom is seen in terms of human development and is the process by which individuals can rise above capability thresholds. In the realisation of basic rights, the state is subject to positive duties to further the fulfilment of freedom.
169 The broader conception of freedom and liberty which emerges from the writings of Sen and Nussbaum has direct consequences upon how we view civil and political rights and socio-economic rights. The distinction between the two sets of rights becomes illusory once civil and political rights are regarded as comprehending within their sweep a corresponding duty to take such measures as would achieve true freedom. Henry Shue295 suggests that rights give rise to corresponding duties. These duties include:
(i) a duty to respect;
(ii) a duty to protect; and
(iii) a duty to fulfil.
Duties of respect embody a restraint on affecting the rights of others. Duties to protect mandate that the state must restrain others in the same manner as it restrains itself. The state’s duty of non-interference extends to private individuals. The duty to fulfil connotes aiding the deprived in the realisation of 294Martha Nussbaum, Women and Human Development, Cambridge University Press, (2000) 295Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton University Press, Second Edition (1996) 231 PART G rights. This imposes a corresponding duty to create the conditions which will facilitate the realisation of the right. The right which is protected for the individual will also signify an expectation that the state must create institutions enabling the exercise of facilitative measures or programmes of action, of an affirmative nature. The state has affirmative obligations to fulfil in the realisation of rights. These positive duties of the state are readily apparent in the context of welfare entitlements when the state must adopt affirmative steps to alleviate poverty and the major sources of economic and social non- freedom. But the thesis of Nussbaum and Shue have an important role for the state to discharge in ensuring the fulfilment of political rights as well. In a highly networked and technology reliant world, individual liberty requires the state to take positive steps to protect individual rights. Data protection and individual privacy mandate that the state put in place a positive regime which recognises, respects and protects the individual from predatory market places. The state has a positive duty to create an autonomous regulatory framework in which the individual has access to remedies both against state and non- state actors, both of whom pose grave dangers of assault on the individual as an autonomous entity. Failure to discharge that duty is a failure of the state to respect, protect and fulfil rights.
Dr Ambedkar’s prophetic final address to the Constituent Assembly elaborates that vision:
“On the social plane, we have in India a society based on the principle of graded inequality with elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of 232 PART G January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality...How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which [this] Assembly has [so] laboriously built up.”296 The pursuit of social welfare and security is a central aspect of development.
The State, in Ambedkar’s vision, would be the main instrumentality in the debate on development, which has to revolve around the social, economic and political spheres and would be guided by the values of the Constitution. 170 Social opportunities are the facilities and “arrangements that society makes” for education, healthcare and nutrition, which “influence the individual’s substantive freedom to live better”.297 Social security measures include programmes which intend to promote the welfare of the population through assistance measures guaranteeing access to sufficient resources. The social security framework is not only important for individual development, but also for effective participation in economic and political activities. Social security programmes flow from ‘economic and social rights’− also called as “welfare rights” 298 or second generation rights. These rights, recognized for the first time under the Universal Declaration on Human Rights, 1948 include a large list of freedoms and claims under its “protective 296 Constituent Assembly Debates (25 November 1949) 297 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 39 298 Amartya Sen, The Idea of Justice, Penguin (2009) at pages 379-380 233 PART G umbrella”. They include not only basic political rights, but the right to work, the right to education, protection against unemployment and poverty, the right to join trade unions and even the right to just and favourable remuneration. 299 Social security programmes as an instrument for the removal of global poverty and other economic and social deprivations are at the centre stage in the global discourse. Article 22 of the Universal Declaration of Human Rights expressly recognises that every member of society is entitled to the right to social security and to the realisation of economic, social and cultural rights. Those rights are stated to be indispensable for dignity and to the free development of personality. The realisation of these rights has to be facilitated both through national efforts and international co-operation and in accordance with the organisation and the resources of each state. Article 22 stipulates that:
“Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” In a similar vein, Article 23 comprehends a conglomeration of rights including
(i) the right to work; (ii) free choice of employment; (iii) just and favourable conditions of work; (iv) protection against unemployment; (v) equal pay for equal work without any discrimination; (vi) just and favourable remuneration for work; and (vii) formation and membership of trade unions. Article 23 299 Ibid, at page 380 234 PART G construes these rights as a means of ensuring both for the individual and the family, an “existence worthy of human dignity” supplemented if necessary “by other means of social protection”.
India having adopted the UDHR, its principles can legitimately animate our constitutional conversations. Both Articles 22 and 23 are significant in recognising economic rights and entitlements in matters of work and social security. Both the articles recognise the intrinsic relationship between human dignity and the realisation of economic rights. Measures of social protection are integral to the realisation of economic freedom and to fulfil the aspiration for human dignity.
171 India adopted and ratified the Covenant on Civil and Political Rights as well as the Covenant on Economic, Social and Cultural Rights. India acceded to the Covenant on Economic, Social and Cultural Rights on 10 April 1979. According to the Preamble, the states who are parties to the Covenant have recognized that:
“the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” Freedom is thus defined in terms of the absence of fear and want. Moreover, freedom consists in the enjoyment of a conglomeration of rights: economic, 235 PART G social and cultural as well as civil and political rights. There is in other words no dichotomy between the two sets of rights.
Article 11 of the Covenant on Economic, Social and Cultural Rights imposes positive obligations on the covenanting states:
“Article 11.
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co- operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(a) Taking into account the problems of both food-importing the food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.” 172 The Masstricht Guidelines on Violations of Economic, Social and Cultural Rights (January 1997) stipulate that:
“It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.” 236 PART G The Guidelines also stipulate that like civil and political rights, economic, social and cultural rights impose three different types of obligations on states :
the obligation to respect, protect and fulfil. The guidelines recognize that violations of economic, social and cultural rights can occur through acts of commission and omission on the part of states. The omission or failure of states to take measures emanating from their legal obligations may result in such violations. Among them is the failure to enforce legislation or to put into effect policies designed to implement the provisions of the Covenant. In similar terms, the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights cast affirmative duties on states to take immediate steps towards realizing the rights contained in the Covenant. Clauses 16, 21 and 27 of the guidelines are thus:
“16. All States parties have an obligation to begin immediately to take steps towards full realization of the rights contained in the Covenant.
21. The obligation “to achieve progressively the full realization of the rights” requires States parties to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realization. On the contrary all States parties have the obligation to begin immediately to take steps to fulfil their obligations under the Covenant.
27. In determining whether adequate measures have been taken for the realization of the rights recognized in the Covenant attention shall be paid to equitable and effective use of and access to the available resources.” The office of the UN High Commissioner for Human Rights notified General Comment No. 3, which was adopted at the fifth session of the Committee on 237 PART G Economic, Social and Cultural Rights on 14 December 1990. The Comment states:
“…while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.” Similarly, General Comment No. 12 on the right to adequate food was adopted at the twentieth session of the Committee on Economic, Social and Cultural Rights on 12 May 1999. It states :
“The Committee observes that while the problems of hunger and malnutrition are often particularly acute in developing countries, malnutrition, under-nutrition and other problems which relate to the right to adequate food and the right to freedom from hunger also exist in some of the most economically developed countries, Fundamentally, the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food, inter alia because of poverty, by large segments of the world's population.” The emphasis on the lack of access to available food is significant to the present discourse. It indicates that access to food requires institutional mechanisms to ensure that the available resources reach the beneficiaries for whom they are intended.
173 Section 2(1)(f) of the Protection of Human Rights Act 1993 specifically adverts to the Covenant on Economic, Social and Cultural Rights:
“2.(1)(f) “International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December, 1996 and such other Covenant or Convention 238 PART G adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify;” Under Section 12(f), the National Human Rights Commission has been entrusted with the function of studying treaties and other international instruments of human rights and to make recommendations for their effective implementation. Parliament has statutorily incorporated India’s obligations at international law under the above covenants as a part of the national effort to realise fundamental human freedoms. Achieving economic freedom is integral to that mission. In his classic work “The Idea of Justice”, Amartya Sen has observed in this regard:
“The inclusion of second-generation rights makes it possible to integrate ethical issues underlying general ideas of global development with the demands of deliberative democracy, both of which connect with human rights and quite often with an understanding of the importance of advancing human capabilities.”300 174 Social security thus acts as an underpinning link with development.
There is also a two-way relationship between development and social security (expansion of human capability). Dreze and Sen have dealt with this relationship in their following observation:
“Growth generates resources with which public and private efforts can be systematically mobilized to expand education, health care, nutrition, social facilities, and other essentials of fuller and freer human life for all. And the expansion of human capability, in turn, allows a faster expansion of resources and production, on which economic growth ultimately depends… Well-functioning public services, especially (but not only) in fields such as education and health, are also critical in fostering participatory growth as well as in ensuring that 300 Amartya Sen, The Idea of Justice, Penguin (2009) at page 381 239 PART G growth leads to rapid improvements in people’s living conditions.”301 The authors have further observed that apart from education and healthcare, India faces larger issues of accountability in the “public sector as a whole”. 302 The lack of progress in public services acts as a huge barrier to improve the quality of life of people.303 It has been observed:
“The relative weakness of Indian social policies on school education, basic healthcare, child nutrition, essential land reform and gender equity reflects deficiencies of politically engaged public reasoning and social pressure, not just inadequacies in the official thinking of the government.”304 The future of Indian democracy therefore depends on how it engages itself with the issues of accountability in transfer of basic human facilities to the common man.
175 The State has a legitimate aim to ensure that its citizens receive basic human facilities. In order to witness development, the huge amount of expenditure that the State incurs in providing subsidies and benefits to the common citizens, must be accompanied by accountability and transparency.
Legislative and institutional changes are often capable of creating an atmosphere of transparency and accountability. The most visible example of a legislative enactment which brought institutional changes is the Right to Information Act, 2005. Commentators have often highlighted the importance 301 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and xi 302 Ibid, at page xi 303 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33 304 Amartya Sen, The Idea of Justice, Penguin (2009) at page 349 240 PART G of this legislation by deliberating upon how it has been successful at “curbing corruption and restoring accountability in public life”305. According to the State, though the Aadhaar programme is not in itself a social security programme, the institutional framework established by the Act, seeks to act, in a way, as an extension of social security programmes. The State has a legitimate concern to check that the welfare benefits which it marks for those, who are entitled, reach them without diversion. The Aadhaar programme, it is argued, acts as an instrument for the realization of the benefits arising out of the social security programmes. The Aadhaar programme, it was further contended, fulfils the State’s concern that its resources are utilised fully for human development.
It has been contended by the Respondents that since the establishment of the UIDAI in 2009, its basic mandate is to provide a unique identity number to residents. The number would subserve two purposes. First, it would serve as a proof of identity. Second, it would be used for the purpose of identifying beneficiaries for the transfer of social welfare benefits, provided by the state. The rationale for establishing a method of identification is to ensure that the benefits provided by social welfare programmes formulated by the State reach the beneficiaries for whom they are intended. As a policy intervention, a unique measure of identification is intended, it has been argued, to secure financial inclusion. A significant hurdle in the success of social welfare programmes is that benefits do not reach the targeted population. The reason 305 Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 100 241 PART G for this may have something to do intrinsically with the condition of the individuals as much as with their larger socio-economic circumstances. Migrant labour and labour in the unorganised sector lacks fixity of abode. The nature of their work renders their lives peripatetic. Nomadic tribes, particularly in inaccessible areas, may not have fixed homes. In many cases, traditional occupations require individuals to move from place to place, dependent on seasonal changes. Then again, groups of citizens including women, children and the differently abled may face significant difficulties in accessing benefits under publicly designed social welfare programmes as a result of factors such as gender, age and disability.
176 Unequal access to welfare benefits provided by the State becomes a significant source of deprivation resulting in a denial of the means to sustain life and livelihood. Before the adoption of Aadhaar based-identity, there were multiple platforms for identification of residents. They created a situation where those with no identity had no access to the means of sustaining a dignified life. Equally significant, as a policy intervention, was the issue of capture. While on the one hand, large swathes of the population had no access to welfare assistance, benefits could be captured by persons not entitled to them either by the assertion of fake or multiple identities. Setting up a fake identity enables an individual to pass off as another and to secure a benefit to which that individual is not entitled. Fake identities compound the problem of capture by allowing individuals to receive multiple benefits through 242 PART G shell identities. Policy makers were confronted with the serious problems posed by fake and multiple identities since they imposed a burden on the exchequer while at the same time diluting the efficacy of state designed social welfare measures. The burden on the exchequer is illustrated by situations where persons who are not entitled to benefits secure them in the guise of being persons entitled to them. When imposters secure benefits which are not meant for them, they deprive in the process, persons who are genuinely entitled to benefits. The class of beneficiaries of social welfare programmes is, so to speak, adulterated by the capture of benefits by those not entitled to them. This raises serious concerns of the deprivation of human rights. The capture of benefits has the consequence of depriving those to whom these benefits should legitimately flow, of the measures designed by the state to protect its populace from human want and need. The resources deployed by the state are from its public revenues. When designing a unique measure of identification, the state must be guided by the necessity of ensuring financial inclusion and of protecting against financial exclusion. Every citizen who is eligible for social welfare benefits should obtain them. No person who is entitled should be excluded. Individuals who do not qualify for social welfare benefits should not capture them by passing off as individuals entitled. Enforcing and implementing a robust platform for identification of beneficiaries must ensure that social welfare benefits reach the hands of those who fulfil the conditions of eligibility and are not captured by rent-seeking behaviour of those to whom social welfare benefits are not designed. This constitutes a 243 PART G legitimate object of state policy. Reaching out to the targeted population is a valid constitutional purpose. Social welfare measures are an intrinsic part of state policy designed to facilitate dignified conditions of existence to the marginalised, especially those who live below the poverty line. Identification of beneficiaries is crucial to the fulfilment of social welfare programmes. 177 These concerns form the basis of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. As its Statement of Objects and Reasons explains:
“The correct identification of targeted beneficiaries for delivery of various subsides, benefits, services, grants, wages and other social benefits schemes which are funded from the Consolidated Fund of India has become a challenge for the Government. The failure to establish identity of an individual has proved to be a major hindrance for successful implementation of these programmes. This has been a grave concern for certain categories of persons, such as women, children, senior citizens, persons with disabilities, migrant unskilled and unorganised workers, and nomadic tribes. In the absence of a credible system to authenticate identity of beneficiaries, it is difficult to ensure that the subsidies, benefits and services reach to intended beneficiaries.” The Statement of Objects and Reasons indicates that the enactment is designed to ensure “the effective, secure and accurate delivery of benefits, subsidies and services from the Consolidated Fund of India to targeted beneficiaries”. The architecture of the law contemplates regulating the following aspects:
“(a) issue of Aadhaar numbers to individuals on providing ..
demographic and biometric information to the Unique Identification Authority of India;
(b) requiring, Aadhaar numbers for identifying an individual for delivery of benefits, subsidies, and 244 PART G services (where) the expenditure is incurred from or the receipt therefrom forms part of the Consolidated Fund of India;
(c) authentication of the Aadhaar number of an Aadhaar number holder in relation to his demographic and biometric information;
(d) establishment of the Unique Identification Authority of India… to perform functions in pursuance of the objectives above;
(e) maintenance and updating the information of individuals in the Central Identities Data Repository in such manner as may be specified by regulations;
(f) measures pertaining to security, privacy and confidentiality of information in possession or control of the Authority including information stored in the Central Identities Data Repository; and
(g) offences and penalties for contravention of relevant statutory provisions.” The Preamble to the enactment indicates that Parliament designed the legislation as an instrument of good governance, to secure an “efficient, transparent and targeted delivery of subsidies, benefits and services” for which the expenditure is incurred from the Consolidated Fund to resident individuals.
178 The Aadhaar platform is not a social welfare benefit in itself. Essentially, what it seeks to achieve is to provide a unique identity to every resident. This identity, in the form of an Aadhaar number, is obtained upon the submission of demographic and biometric information in the course of enrolment. The legislative design envisages that the identity of the individual is verified through the process of authentication by which the biometric data stored in the central repository is matched with the biometric information submitted for authentication. Aadhaar is a platform for verification of identity 245 PART G based principally on biometric information. In facilitating the process of establishing the identity of the individual who seeks social welfare benefits envisaged in Section 7, Aadhaar has an instrumental role. It is instrumental in the sense that as a measure of state policy, it seeks to bring about financial inclusion by providing a means of identification to every segment of the population including those who may not have been within the coverage of traditional markers of identity. As an instrument for verifying identity, Aadhaar seeks to ensure that social welfare benefits are obtained by persons eligible to do so and are not captured by the ineligible. Relying on an asserted reliability of biometric markers, the Aadhaar platform attempts to eliminate, or at least to curb rent-seeking behaviour.
The rationale underlying Section 7 is the targeted delivery of services, benefits and subsidies which are funded from the Consolidated Fund of India. In the seven decades since Independence, the Union Government has put into place social welfare measures including the public distribution system, free education, scholarships, mid-day meals and LPG subsidies to ameliorate the conditions of existence of the poor and marginalised. There is a state interest in ensuring that the welfare benefits which the state provides reach those for whom they are intended.
246 PART G G.3 Identity and Identification 179 Identity is inseparable from the human personality. An identity is a statement of who an individual is. Our identities define who we are. They express what we would wish the world to know us as. The human personality is, at a certain level, all about identity, for it is through the assertion of identity that each individual seeks to preserve the core of his or her humanity. An identity is the persona which an individual puts forth in a multitude of relationships. The significance of our identity lies in our ability to express the core of our beings. When the Constitution protects our right to be and to be what we are, it creates a space where the individual is immune from interference. By recognizing our liberty as autonomous persons, the Constitution recognizes our ability to preserve and shape our identities in interactions with others.
Identity may be, but is not always based upon immutable characteristics that are defined at birth. What is immutable may not be or, at any rate, is not generally understood as being capable of change. But even here, the immutability of our features is relative to our own existence and is capable of being shaped by the social milieu in which human beings lead their lives. Features about our biological being which are defined at birth are, after all, not as constraining upon our identities as is often assumed to be the case. That is because these immutable features are also constantly engaged with our 247 PART G social and cultural environment. They shape and are influenced by that environment.
180 There is a distinction between identity and identification. Identification is a matter of proof- of establishing that a person is actually, the individual who claims a right or entitlement. In their daily interactions, individuals have to distinguish themselves from others, whether it be in the course of employment, travel, civil union, location, community perspectives, revenue obligations or access to benefits. Identification is a proof of identity or evidence of identity. Identification is mandatory in numerous activities of day to day life: a passport is necessary for international travel, a voter ID is required for exercising electoral rights, a driving license is necessary to ply a vehicle and an arms license is needed to possess a fire arm. The holder of a policy of medical insurance will have a card depicting his or her identity which is a proof of holding a valid policy for availing medical benefits. 181 Under international law, recognition of identity is an obligation of a nation state. Article 6 of the Universal Declaration of Human Rights provides that “everyone has the right to recognition everywhere as a person before the law”. Article 16 of the International Covenant on Civil and Political Rights is in similar terms. Article 8 of the UN Convention on the Rights of the Child mandates that State parties undertake to respect the right of the child to 248 PART G preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. The importance of identity is recognized by Article 3 of the American Convention on Human Rights. The Inter-American Juridical Committee (IAJC) of the Organisation of American States (OAS) has in fact provided that:
“12. The right to identity is consubstantial to the attributes and human dignity. Consequently it is an enforceable basic human right erga omnes as an expression of a collective interest of the overall international community that does not admit derogation or suspension in cases provided in the American Convention on Human Rights.
…
15. The Committee considers that the right to identity is, among its most relevant implications and scope, to constitute an autonomous right that is based on the regulations of international law and those that derive from the actual cultural elements considered in the domestic legal systems of the States, in order therefore to satisfy the specificity of the individual, with his or her rights that are unique, singular and identifiable.”306 182 In National Legal Services Authority v Union of India307, this Court held that gender identity is fundamental to and an essential component for the enjoyment of civil rights by the transgender community. Self-determination of identity has been held to be an essential facet of Article 21. In the view of this Court:
“74. The recognition of one's gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one's sense of being as well 306 Opinion on the Right to Identity, 2007, available at http://www.oas.org/en/sla/iajc/docs/ijc_current_agenda_Right_to_Identity.pdf 307 (2014) 5 SCC 438 249 PART G as an integral part of a person's identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.
75. Article 21, as already indicated, guarantees the protection of "personal autonomy" of an individual. In Anuj Garg v. Hotel Association of India33 (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” Identity assumes a complex character in a networked society. Shah adopts the following definition of a networked society308:
“a network society is a society where the key social structures and activities are organized around electronically processed information networks. So it’s not just about networks or social networks, because social networks have been very old forms of social organization. It’s about social networks which process and manage information and are using micro- electronic based technologies”309.
183 In a networked society, an individual is a data subject and a quantified self. The individual is a data subject since his or her data is stored in a database. Shah notes that there is an ambivalence about whether the data subject is the individual whose identity becomes the basis of validating the data or whether the data subject is the identity of the individual as it gets constructed through data sets. The individual becomes a quantified self where data which is distributed across various systems is “curated” to form a comprehensive profile of an individual.
308Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification- the-Individual-in-the-Time-of-Networked-Governance.pdf 309Manuel Castells, Conversation with Manuel Castells, Globetrotter, available at http://globetrotter.berkeley.edu/people/Castells/castells-con4.html 250 PART G 184 The Aadhaar project was intended to allow a unique identity to enable individuals to “navigate through disconnected and often hostile governmental database systems”. Shah notes that ever since 2009, the terms ‘identity’ and ‘identification’ were used as part of the Aadhaar project inter-changeably, introducing “a curious conflation and interoperability”310 between these notions. ‘Identification’ is the ability of a network device to identify an individual by scanning unique data sets, from personal information to biometric details such as finger print and iris scan, which would be stored in a massive centralized database. UIDAI posited that identification took place through its yes/no mechanism by which the centralised database would provide a response to whether the biometric details submitted for authentication match those in the repository. Technologically, at this level, Aadhaar was to be a means of identification. Yet at another level, the Aadhaar project also offered itself as providing a documentary identity to persons who may not have possessed one at all. Shah, in the course of his article, has this to state about the conflation between identity and identification in the Aadhaar project:
“This ambiguity and conflation cannot merely be attributed to a semantic slip of the keyboard, but to a much larger phenomenon which points to the construction of a new notion of the individual, through big data streams and measures of self-quantification. It offers us a techno-social framework where the machine function of identification is wedded to the human expression of identity, and thus offers an inroad into looking at what happens when our identities are mediated, mitigated, facilitated, and contained by the ways in which the networked technologies of authentication and verification operate. It is a crucial shift where the identity of a person is ontologically defined through the logics and logistics of 310Nishant Shah, Identity and Identification – the Individual in the Time of Networked Governance, Socio Legal Review, available at http://www.sociolegalreview.com/wp-content/uploads/2015/12/Identity-and-Identification-
the-Individual-in-the-Time-of-Networked-Governance.pdf 251 PART G networked computation that form the Aadhaar project. This is why the Aadhaar enrolment system, for instance, does not check the veracity of the information that the individual gives it. For the enrolment, the individual needs no proof to substantiate or validate the information provided. The name, the address, the description, etc. are empty signifiers and it is possible for anybody to assume any identity as long as they give the inviolable data of biometric recognition. Thus, the identity of the person being enrolled and registered is almost insignificant and has value only in how it would now always identify the individual through the credentials or information provided. The Aadhaar network governance system is concerned only with the identifiers rather than the narrative, iterative, forms of identity and expression, and this is where we begin examining the ways in which identity is shaped, understood, and used to construct the notion of an individual in computation systems.”311 185 Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. That concept is now “flipped” so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual.
The submission which has been urged on behalf of the petitioners is that an individual entitled to the protection of the freedoms and liberties guaranteed by Part III of the Constitution must have the ability to assert a choice of the means of identification for proving identity. Requiring an individual to prove identity on the basis of one mode alone will, it is submitted, violate the right of self-determination and free choice.
311 Ibid 252 PART G 186 The Aadhaar (Enrolment and Update) Regulations, 2016 stipulate in Regulation 4, the demographic information which is required for enrolment. Regulation 4 is in the following terms:
“4. Demographic information required for enrolment.-
(1) The following demographic information shall be collected from all individuals undergoing enrolment (other than children below five years of age):
(i) Name; (ii) Date of Birth; (iii) Gender; (iv) Residential Address.
(2) The following demographic information may also additionally be collected during enrolment, at the option of the individual undergoing enrolment:
(i) Mobile number;
(ii) Email address.
(3) In case of Introducer-based enrolment, the following additional information shall be collected:
(i) Introducer name;
(ii) Introducer’s Aadhaar number.
(4) In case of Head of Family based enrolment, the following additional information shall be collected:
(i) Name of Head of Family;
(ii) Relationship;
(iii) Head of Family’s Aadhaar number;
(iv) One modality of biometric information of the Head of Family.
(5) The standards of the above demographic information shall be as may be specified by the Authority for this purpose.253
PART G (6) The demographic information shall not include race, religion, caste, tribe, ethnicity, language, record of entitlement, income or medical history of the resident.” Regulation 9 postulates that at the time of enrolment, the enrolling agency shall inform the individual who is undergoing enrolment of (i) the manner in which the information shall be used; (ii) the nature of recipients with whom the information is intended to be shared during authentication; and (iii) the existence of a right to access information. Under Regulation 10, a resident seeking enrolment has to submit an application for enrolment together with copies of supporting documents for proof of identity, address and date of birth. Schedule II indicates a list of supporting documents which are accepted for verification of identity, address and date of birth. If a resident does not possess the supporting documents, enrolment is contemplated through an introducer or a Head of Family. Schedule II contains as many as eighteen documents which are accepted towards proof of identity and thirty three documents as proof of address. The Aadhaar Act, it has been contended, allows the resident to identify herself through any of the stipulated documents for the purpose of availing an Aadhaar number. The Aadhaar number can be availed of to secure a subsidy, benefit or service under Section 7, the expenditure of which is drawn from the Consolidated Fund of India. Article 266 of the Constitution provides as follows:
“266. Consolidated Funds and public accounts of India and of the States 254 PART G (1) Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the “Consolidated Fund of India”, and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of the State”.
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be (3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.” 187 The Union Government is the custodian of the Consolidated Fund under Article 266. All revenues received by the government form part of the Consolidated Fund. No part of its proceeds can be “appropriated except in accordance with law and for the purpose and in the manner” which is provided by the Constitution. As the custodian of the fund, the Union Government, it has been submitted by the respondents, had the Aadhaar Act enacted through Parliament. The Act places a restriction on the right of the individual to utilize any other identification save and except for the Aadhaar number, for the purpose of availing of a subsidy, benefit or service that involves an expenditure from the Consolidated Fund. The purpose of making an Aadhaar number mandatory for the delivery of benefits, services and subsidies funded from the Consolidated Fund is to confirm the identity of the individual to whom 255 PART G the benefit is being transferred. This was in order to ensure that the benefits under social welfare programmes funded by the Consolidated Fund reach the hands of targeted beneficiaries. The Union Government which expends huge sums of money in its welfare schemes was apprised of the fact that money which was meant for the beneficiaries was being siphoned off through ghosts and duplicates. As a result, genuine beneficiaries would be deprived of their basic rights. Cornering of benefits by the creation of bogus identities seriously impacted upon social welfare measures adopted by the Union Government as an instrument of fostering social and economic development. It was to deal with this evil that the Aadhaar project assumed a statutory character in 2016. Through the provisions of the law, Parliament intended that Aadhaar should become an effective instrument of de-duplication. This is premised on the view of the legislating body that the use of biometrics would render it difficult, if not impossible, to obtain fake identities. Aadhaar, in other words, was adopted as a matter of legislative policy to curb the evil of shell companies and ghost identities. Where the State expends large sums on social welfare projects, it has a legitimate interest in ensuring that the resources which it deploys reach the hands of those for whom they are meant. Thus, there are two important facets of the Aadhaar regime which must be noticed. The first is that under Section 3, it is a voluntary option of the individual to choose Aadhaar as a form of identification. However, if the individual seeks a subsidy, benefit or service for which the expenditure is 256 PART G incurred from the Consolidated Fund of India, Aadhaar becomes a mandatory requirement. The second important feature is the requirement of informed consent when the individual parts with identity information. The mandate of Section 7 must be understood from the perspective of the obligation imposed on the State to ensure effective and efficient utilization of public resources. Article 266 reinforces that mandate in its stipulation that all monies out of the Consolidated Fund of India can only be appropriated in accordance with law, for the purpose of and in the manner provided by the Constitution. The State is a trustee of public resources. The adoption of Aadhaar is in fulfilment of the doctrine of public trust. The state is under a bounden obligation to ensure that its revenues which are placed in the Consolidated Fund are appropriated in accordance with law and are not diverted for extraneous purposes. These principles have been elucidated in the decisions of this Court in Natural Resources Allocation, In Re, Special Reference No.1 of 2012312, Centre for Public Interest Litigation v Union of India313, Reliance Telecom Limited v Union of India314.
The mandate of Section 7 is founded on a legitimate state interest. The state has a vital interest in ensuring that public revenues are duly accounted, that the Consolidated Fund is utilized for purposes authorized by law; that funds for development reach genuine beneficiaries and that scarce public resources 312 (2012) 10 SCC 1 313 (2012) 3 SCC 1 314 (2017) 4 SCC 269 257 PART H meant for those at the foot of the socio-economic ladder are not mis-utilized by rent-seeking behavior.
H Proportionality 188 The petitioners have challenged the constitutional validity of the Aadhaar project and the Aadhaar Act on various grounds including the violation of the fundamental rights of citizens including the right to privacy and dignity. The respondents, in defense, have argued that Aadhaar is an enabler of identity and empowers citizens to realise various facets of the right to life, such as the right to food and livelihood.
189 The learned Attorney General has argued that the use and authentication of the Aadhaar number is a necessary and proportionate measure to ensure targeted delivery of financial benefits and services and to prevent ‘leakages’. He submits that the Aadhaar scheme satisfies the test of proportionality: it has a rational nexus with the goal that it seeks to achieve, and since welfare benefits enhance the right to live with dignity, the latter will prevail over the right to privacy. Mr Rakesh Dwivedi, learned Senior Counsel has argued that the “least intrusive test” is not accepted in Indian jurisprudence. He submits that even if the test were to be accepted, the exercise of determining whether a measure is the least intrusive is a technical issue for which the Court lacks the requisite expertise. He states that this 258 PART H exercise “cannot be undertaken in the courts with the assistance of lawyers who equally have no expertise in the field” and that “such an exercise involves research, study by the experts and courts cannot substitute the same”. Mr Gopal Sankaranarayanan, learned Counsel, submits that the means adopted “at the moment” are no more than is necessary for ensuring that the “avowed objects” are served, and that they balance individual interests (fundamental rights) with societal interests (directive principles). He further submits that the fact there are various limitations in place ensure that “some balance” is achieved between the breach of privacy and the object sought to be achieved. This Court must now perform the delicate task of ‘balancing’ these competing interests by subjecting the Aadhaar Act to the proportionality test.
H.I Harmonising conflicting rights 190 In the 2003 edition of his celebrated work, Granville Austin recounts the
words of Prime Minister Morarji Desai that freedom and bread are not incompatible, but further adds, ‘Neither could they easily be sought together’.315 As mentioned earlier, Granville Austin had insightfully spoken about how the strands of the Constitution of unity-integrity, democracy and social revolution could come in conflict with one another creating challenges for those who work with the Constitution.316 Some of the questions inherent in 315 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University Press (2003), at page 652 316 Ibid, at page 651 259 PART H the Constitution according to him are “Democracy for whom? Justice for whom? What is Justice? What are the appropriate means of employing the Constitution’s means’ among citizens, between them and their government?”317 It was due to the foresight of the framers of the Constitution that they insisted that neither the strand of social revolution nor the strand of democracy was to be pursued at the expense of the other.318 The ostensible conflict between bread and freedom has also been explored in the works of Professor Upendra Baxi. In a seminal essay on human rights in 1984 which he calls the “the great gift of classical and contemporary human thought to culture and civilization”319, he discusses the widening sphere of human rights thought and action to new arenas and constituencies as “New rights arise from the womb of the old.”320 He draws on the distinction between basic human needs and human rights and argues that the constant struggle between these two forces is the essence of the difference between the right to be human approach and the human rights approach.321 It is rightly pointed out that a discussion on human rights will always constitute an inherent aspect of the larger debate of development. He opines that whatever meaning maybe ascribed to the term “development”, it must ensure that people will not be deprived of the right to remain human:
317 Ibid 318 Ibid 319Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, India International Centre Quarterly, Vol. 13, No. 3/4, Pg.185, (December 1986) 320 Ibid, at page 185 321 Ibid 260 PART H “Whatever it may be made to mean, “development” must at least mean this: people will be given the right to be and remain human. Total and continuing destitution and impoverishment exposes people to a loss of their humanity. In no society that takes human rights seriously should there be allowed a state of affairs where human beings become sub- human—that is, when they perforce have to surrender even those sonorously recited "inalienable" rights of man… The expression "human rights" presupposes a level at which biological entities are bestowed with the dignity of being called human. The bearers of human rights must have an implicit right to be and remain human, allowing them some autonomy of choice in planning survival.”322 Thus, the broader matrix of human rights includes within it the inalienable and fundamental right to always ‘be and remain human’. Professor Upendra Baxi notes that this broader debate between human rights and the ‘right to be human’ is reflective of the bread vs freedom conflict. It is noted that historically, freedom might have been chosen over bread due to the vast enumeration of liberal rights it includes, despite the acute awareness that without bread, freedom of speech and assembly, of association, of conscience and religion, of political participation, symbolic adult suffrage may all be meaningless.323 At the same time, Baxi points out the danger in choosing bread at the cost of freedom, given that historically in the absence of freedom, human beings have been subject to the most egregious indignities:
“The provision of "bread" may justify indefinite postponement of the provision of any kind of "freedom". In the absence of such freedom, even the promised "bread" may not be realized by the masses; indeed, they even lose, in the process, their power to protest at the indignity of regime sponsored starvation.
This, indeed, is a possibility which has materialized more often than not.”324 322 Ibid, at page 187 323 Ibid, at page 186 324 Ibid, at page 190 261 PART H Baxi concludes that the choice between bread and freedom is a false antithesis. The challenge is not a choice in the abstract between bread and freedom but rather the balancing of the two:325 “But the issues are not really "bread" and/or "freedom" in the abstract, but rather who has how much of each, for how long, at what cost to others, and why. Some people have both "bread" and "freedom"; others have "freedom" but little "bread" or none at all; yet others have half a loaf (which is better than none, surely!) with or without freedom; and still others have a precarious mix where "bread" is assured if certain (not all) freedoms are bartered.”326 It is the foremost duty of the State to work towards achieving and maintaining a fine balance, taking into account these myriad considerations. The State must always be guided by the knowledge and sense of duty that in a true democracy, the citizens cannot be made to choose between rights and needs, as they are equally entitled to both. As the sentinel of justice and protector of fundamental rights, it is the responsibility of this Court to act as a check and ensure that government action or inaction does not endanger or threaten to disturb the balance that the Constitution seeks to achieve. It is imperative to remember that both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing to our citizens the gamut of human rights and freedoms that make human existence meaningful.
191 While exercising judicial review, courts are often confronted with situations involving conflicts between rights, tensions between individuals arising from the assertion of rights and discord arising out of the assertion of 325 Ibid, at page 186 326 Ibid, at page 186 262 PART H the same right by two or more individuals. Conflicts between rights arise when the assertion of a fundamental human right by an individual impacts upon the exercise of distinct freedoms by others. The freedom of one individual to speak and to express may affect the dignity of another. A person may be aggrieved when the free exercise of the right to speak by someone impinges upon his or her reputation, which is integral to the right to life under Article 21. A conflict will, in such a situation, arise between a right which is asserted under Article 19(1)(a) by one citizen and the sense of injury of another who claims protection of the right to dignity under Article 21. Conflicts also arise when the exercise of rights is perceived to impact upon the collective identity of another group of persons. Conflicts may arise when an activity or conduct of an individual, in pursuit of a freedom recognised by the Constitution, impinges upon the protection afforded to another individual under the rubric of the same human right. Such a situation involves a conflict arising from a freedom which is relatable to the same constitutional guarantee. Privacy is an assertion of the right to life under Article 21. The right to a dignified existence is also protected by the same Article. A conflict within Article 21 may involve a situation when two freedoms are asserted as political rights. A conflict may also envisage a situation where an assertion of a political right under the umbrella of the right to life stands in conflict with the assertion of an economic right which is also comprehended by the protection of life under the Constitution.
263 PART H Such conflicts require the court to embark on a process of judicial interpretation. The task is to achieve a sense of balance. An ideal situation would be one which would preserve the core of the right for both sets of citizens whose entitlements to freedom appear to be in conflict. Realistically, drawing balances is not a simple task. Balances involve sacrifices and the foregoing of entitlements. In making those decisions, a certain degree of value judgment is inevitable. The balance which the court draws may be open to criticism in regard to its value judgment on the relative importance ascribed to the conflicting rights in judicial decision making. In making those fine balances, the court can pursue an objective formulation by relying upon those values which the Constitution puts forth as part of its endeavour for a just society. Our Constitution has in Part III recognised the importance of political freedom. In Part IV, the Constitution has recognised our social histories of discrimination and prejudice which have led to poverty, deprivation and the absence of a dignified existence to major segments of society. Holding Part III in balance with Part IV is integral to the vision of social and economic justice which the Constitution has sought to achieve consistent with political democracy. Difficult as this area is, a balancing of rights is inevitable, when rights asserted by individuals are in conflict. 192 Several decisions of this Court over the last two decades have sought to bring order to the clash between fundamental rights. In People’s Union for 264 PART H Civil Liberties (PUCL) v Union of India327, this Court was called upon to balance the right to information of voters (requiring the disclosure of the assets of candidates and their spouses at an election) with the right to privacy implicit in Article 21. In drawing the balance, a bench of three Judges of this Court gave primacy to the entitlement of citizens to be informed about the affairs of those who would represent them in electoral democracy. As the Court held:
“121…By calling upon the contesting candidate to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter/citizen is thereby promoted.
When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves the larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given.”328 The Court held that the provision contained in the Representation of People Act 1951 for a disclosure of assets and liabilities only to the Speaker or to the Chairman of the House did not adequately protect the citizen’s right to information, resulting in a violation of the guarantee of free speech and expression.
193 In Thalappalam Service Cooperative Bank Limited v State of Kerala329, this Court dealt with a conflict between the right to information 327 (2003) 4 SCC 399 328 Ibid, at page 472 329 (2013) 16 SCC 82 265 PART H [(protected by Article 19(1)(a)] and the right to privacy (protected by Article
21). The Court observed:
“61. The right to information and right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern State. Citizens' right to get information is statutorily recognised by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act.”330 The Court held that the balance between the right to information and the right to privacy is drawn under the Right to Information Act 2005: if the information which is sought is personal and has no relationship with a public activity or interest, a public authority is not legally bound to provide such information. If the information which is sought is to be made available in the larger public interest, reasons have to be recorded because the person from whom the information is sought has a right to privacy guaranteed by Article 21.
Thalappalam considered a conflict arising between two fundamental rights, the right to information protected by Article 19(1)(a) and the right to privacy which is protected by Article 21.
194 More recently, in G Sundarrajan v Union of India331, a two judge Bench considered a challenge to the establishment of a nuclear power plant on the ground that it would violate the right to life guaranteed by Article 21. Noting that there was a need to draw a balance between the assertion of 330 Ibid, at page 112 331 (2013) 6 SCC 620 266 PART H several rights including the protection of the environment, the Court observed that the larger public interest must prevail:
“198. We have to resolve the issue whether the establishment of NPP would have the effect of violating the right to life guaranteed under Article 21 to the persons who are residing in and around Kudankulam or by establishing the NPP, it will uphold the right to life in a larger sense. While balancing the benefit of establishing KKNPP Units 1 to 6, with right to life and property and the protection of environment including marine life, we have to strike a balance, since the production of nuclear energy is of extreme importance for the economic growth of our country, alleviate poverty, generate employment, etc. While setting up a project of this nature, we have to have an overall view of larger public interest rather than smaller violation of right to life guaranteed under Article 21 of the Constitution.”332 In Subramanian Swamy v Union of India333, the learned Chief Justice, speaking for a Bench of two judges emphasised the need for a sense of balance when the assertion of fundamental rights by two citizens is in conflict:
“137…One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the directive principles in the interests of social welfare as a whole. The Court's duty is to strike a balance between competing claims of different interests.”334 Noting that the “balancing of fundamental rights is a constitutional necessity”, the Court has attempted to harmonise reputation as an intrinsic element of the right to life under Article 21 with criminal defamation as a restriction under Article 19(2).
332 Ibid, at page 714 333 (2016) 7 SCC 221 334 Ibid, at page 319 267 PART H 195 In Asha Ranjan v Chandrakeshwar Prasad335, this Court dealt with a case involving a conflict between the fundamental rights of two individuals within Article 21. There was on the one hand an assertion of the right to life on the part of an individual accused of an offence, who claimed a right to a fair trial, and the protection of the interests of the victim which was also relatable to the same fundamental right under Article 21. In resolving the conflict, the Court gave expression to the need to preserve “paramount collective interests”:
“61…circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, … may be different than the principle to be applied in intra-conflict between the same fundamental right. To elaborate, as in this case, the accused has a fundamental right to have a fair trial under Article 21 of the Constitution. Similarly, the victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration.  Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra-
conflict of the right conferred under the same article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be “paramount collective interest” or “sustenance of public confidence in the justice dispensation system”.336 196 These decisions indicate that the process of resolving conflicts arising out of the assertion of different fundamental rights and conflicts within the same fundamental right, necessarily involves judicial balancing. In finding a 335 (2017) 4 SCC 397 336 Ibid, at page 433 268 PART H just balance this Court has applied norms such as the ‘paramount public interest’. In seeking to draw the balance between political freedoms and economic freedoms, the Court must preserve the euphony between fundamental rights and directive principles. It is on their co-existence that the edifice of the Constitution is founded. Neither can exist without the other.
Democracy rejects the totalitarian option of recognising economic entitlements without political liberty. Economic rights have become justiciable because of the constitutional guarantees founded on freedom and the rule of law. The Constitution is founded on democratic governance and is based on the protection of individual freedom. Freedom comprehends both fundamental political freedoms as well as basic human rights. A just balance between the two is integral to the fulfilment of India’s constitutional commitment to realise human liberty in a social context which is cognizant of the histories of discrimination and prejudice suffered by large segments of our society. Where the question is related to the limiting the right to privacy, Puttaswamy requires the test of proportionality. It has, therefore, to be tested whether the Aadhaar scheme fulfils the test of proportionality. 197 The test of proportionality, which began as an unwritten set of general principles of law, today constitutes the dominant “best practice” judicial standard for resolving disputes that involve either a conflict between two rights claims or between a right and a legitimate government interest. 337 It has 337JudMathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of Balancing, Emory Law Journal, Vol. 60 (2011) 269 PART H become a “centrepiece of jurisprudence” across the European continent as well as in common law jurisdictions including the United Kingdom, South Africa and Israel.338 Proportionality is the “defining doctrinal core of a transnational rights-based constitutionalism”339. It has been raised to the rank of a fundamental constitutional principle,340 and represents a global shift from a culture of authority to a culture of justification.341 Servin argues that jurisprudence on privacy has evolved from the “right to be let alone”, to now being centered around the principle of proportionality.342 198 Subjecting the Aadhaar scheme to the test of proportionality does not mean that the Court is second-guessing the wisdom of the legislature. State action must be subjected to judicial scrutiny to ensure that it passes constitutional muster. The test of proportionality stipulates that the nature and extent of the State’s interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting).
338Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law, Vol. 47 (2008) 339Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of Balancing, Emory Law Journal, Vol. 60 (2011) 340 Ibid 341Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of Justification, American Journal of Comparative Law Vol. 59 (2011) (cited in); Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights, South African Journal on Human Rights, Vol. 10 (1994) 342Andrew B. Serwin, Privacy 3.0 – The Principle of Proportionality, University of Michigan Journal of Law Reform, Vol. 42 (2009) 270 PART H Within the framework of constitutional interpretation, proportionality serves as a test to determine the extent to which fundamental rights can be limited in the face of legislative intervention which purports to further social and public interest aims. Aharon Barak, the former Chief Justice of the Supreme Court of Israel has described the importance of the proportionality test as thus:343 “Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights … Our democracy is characterized by the fact that it imposes limits on the ability to violate human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his right, which cannot be breached even by majority.” In applying the proportionality test, the Court cannot mechanically defer to the State’s assertions. Especially given the intrusive nature of the Aadhaar scheme, such deference to the legislature is inappropriate. The State must discharge its burden by demonstrating that rights-infringing measures were necessary and proportionate to the goal sought to be achieved. H.2 Proportionality standard in Indian jurisprudence 199 In India, the principle of proportionality has a long jurisprudential history which has been adverted to in a judgment344 of this Court:
“On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner 343 Adalah v. The Minister of Interior, HCJ 7052/03, English translation available at http://elyon.court.gov.il/files_eng/03/520/070a47/03070520.a47.pdf 344 Om Kumar v Union of India, (2001) 2 SCC 386 271 PART H consistent with the charter of rights. Ever since 1950, the principle of ‘proportionality’ has indeed been applied vigorously to legislative (and administrative action) in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India…this court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices.” (Emphasis supplied) The early decisions of this Court may not have used the expression “proportionality”. But the manner in which the court explained what would be a permissible restraint on rights indicates the seeds or the core of the proportionality standard. Proportionality has been the core of reasonableness since the 1950s. Chintaman Rao v State of Madhya Pradesh345 concerned a State legislation which empowered the government to prohibit people in certain areas from manufacturing bidis. The object of the law was to ensure the supply of adequate labour for agricultural purposes in areas where bidi manufacturing was an alternative source of employment for persons likely to be engaged in agricultural labour. The Court held that the State need not have prohibited all labourers from engaging in bidi manufacturing throughout the year in order to satisfy the objective. Justice Mahajan, on behalf of a Constitution Bench held:
“6.The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom 345 1950 SCR 759 272 PART H guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.” (Emphasis supplied) 200 State of Madras v V G Row346 considered whether the action of the Tamil Nadu government in declaring an association unlawful violated Article 19(1)(c) of the Constitution. Chief Justice Patanjali Sastri, speaking for the Constitution Bench, propounded what has come to be regarded as a classic statement of the principle of proportionality in our law:
“15…the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict...” (Emphasis supplied) The decision of the Constitution Bench in State of Bihar v Kamla Kant Misra347 concerned a challenge to the second part of sub-section (6) of Section 144 of the Code of Criminal Procedure on the ground that it violated sub-clauses (b), (c) and (d) of Clause (1) of Article 19 of the Constitution.
Justice K S Hegde, speaking for the majority, observed:
“15.One of the important tests to find out whether a restriction is reasonable is to see …whether the restriction is in excess of the requirement or whether it is imposed in an arbitrary manner”.348 (Emphasis supplied) 346 1952 SCR 597 347 (1969) 3 SCC 337 348 Ibid, at page 345 273 PART H 201 In Mohammed Faruk v State of Madhya Pradesh349 a Constitution Bench of this Court held that in determining the proportionality of a measure restricting an individual’s right under Article 19(1)(g) of the Constitution, the factors to be taken into consideration would include whether a less drastic restriction would have served the purpose. As the Court held:
“10…The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, [...],the possibility of achieving the object by imposing a less drastic restraint , [...] or that a less drastic restriction may ensure the object intended to be achieved.”350 (Emphasis supplied) In Bishambhar Dayal Chandra Mohan v State of Uttar Pradesh351, “reasonable restriction” was held to mean that the limitation imposed on the enjoyment of a right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
202 The decision in Om Kumar v Union of India352 concerned the quantum of punishment imposed in departmental disciplinary proceedings. Justice M.
Jagannadha Rao, speaking for a two judge Bench, defined proportionality in the following terms:
“28. By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or 349 (1969) 1 SCC 853 350 Ibid, at page 857 351 (1982) 1 SCC 39 352 (2001) 2 SCC 386 274 PART H least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are however given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.”353 (Emphasis supplied) In Teri Oat Estates v U.T., Chandigarh354, this Court adopted a similar interpretation of proportionality.
203 In Modern Dental College and Research Centre v State of Madhya Pradesh,355 a Constitution Bench of this Court while dealing with a challenge to the vires of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, held that proportionality is the correct test to apply in the context of Article 19(6). Justice A K Sikri, speaking for the Court, held thus :
“60…Thus, while examining as to whether the impugned provisions of the statute and Rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as 'Doctrine of Proportionality'.
Jurisprudentially, 'proportionality' can be defined as the set of Rules determining the necessary and sufficient conditions for limitation of a constitutionally protected 353 Ibid, at page 399 354 (2004) 2 SCC 130 355 (2016) 7 SCC 353 275 PART H right by a law to be constitutionally permissible...”356 (Emphasis supplied) While expounding on the theory of proportionality, Justice AK Sikri referred to Aharon Barak’s seminal book357 on proportionality:
“60…A limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation ('proportionality stricto sensu' or 'balancing') between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.”358 Justice Sikri held that laws limiting constitutional rights must satisfy the test of proportionality:
“63…The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary….359
64. The exercise which, therefore, to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”360 (Emphasis supplied) 356 Ibid, at page 412 357 Aharon Barak, Proportionality: Constitutional Rights and their Limitations, Cambridge University Press (2012) 358 Ibid, at page 412 359 Ibid, at page 414 360 Ibid, at page 415 276 PART H 204 In KS Puttaswamy v Union of India361, one of us (Chandrachud J.), speaking for four judges, laid down the tests that would need to be satisfied under our Constitution for violations of privacy to be justified. This included the test of proportionality:
“325…A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. 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.”362 The third principle (iii above) adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve them.
The essential role of the test of proportionality is to enable the court to determine whether a legislative measure is disproportionate in its interference with the fundamental right. In determining this, the court will have regard to whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law.
361 (2017) 10 SCC 1 362 Ibid, at page 509 277 PART H Justice Sanjay Kishan Kaul, in his concurring opinion, suggested a four- pronged test as follows363:
“(i)The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference.” The ‘test of proportionality’ is a judicially-entrenched principle which has invigorated fundamental rights jurisprudence in the country. The application of the proportionality standard in rights-based adjudication is well-recognised across diverse jurisdictions.
H.3 Comparative jurisprudence 205 Since some of the concerns raised by the Aadhaar scheme have arisen
for the first time in India, it would be appropriate to discuss judgments of foreign jurisdictions which have inquired into the proportionality of measures many of them similar to those prescribed under the Aadhaar Act. 206 The Privy Council formulated the parameters of proportionality in Elloy de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,364 elaborating a three-fold test:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed 363 Ibid, at para 638 364 [1999] 1 AC 69 278 PART H to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” Subsequently in Huang (FC) v Secretary of State for the Home Department,365 the House of Lords added a fourth parameter which is “the need to balance the interests of society with those of individuals and groups.” 207 In the Federal Census Act Case (Volkszählungsurteil),366 the Federal Constitutional Court of the Federal Republic of Germany dealt with a challenge to the German Federal Census Act, 1983, which provided for collection of citizens’ basic personal information, including, inter alia, source of income, occupation, supplementary employment, educational background and hours of work. Certain provisions provided for transmission of statistical data to local governments for the purposes of regional planning, surveying, environmental protection, and redrawing of election districts. The Court struck down provisions permitting transfer of statistical data to local authorities on the ground that they enabled authorities to compare census data with local housing registries. The Court observed that the combination of statistical data and a personalized registry could lead to the identification of particular persons, which would lead to a chilling effect upon individuals’ right to informational self-determination.
365 [2007] UKHL 11 366 (1983) 65 BVerfGE 1 279 PART H The Court developed a ‘fundamental right of informational self-determination’ drawing from Articles 1(1) and 2(1) of the German Constitution, which protect the fundamental right to human dignity and the right to freely develop one’s personality. Explaining the importance of this right in the context of risks occasioned by modern data processing, the Court noted that:
“The freedom of individuals to make plans or decisions in reliance on their personal powers of self-determination may be significantly inhibited if they cannot with sufficient certainty determine what information on them is known in certain areas of their social sphere and in some measure appraise the extent of knowledge in the possession of possible interlocutors. A social order in which individuals can no longer ascertain who knows what about them and when and a legal order that makes this possible would not be compatible with the right to informational self-determination…This would not only restrict the possibilities for personal development of those individuals but also be detrimental to the public good since self-determination is an elementary prerequisite for the functioning of a free democratic society predicated on the freedom of action and participation of its members…The fundamental right guarantees in principle the power of individuals to make their own decisions as regards the disclosure and use of their personal data.”367 The Court, while recognizing the right to informational self-determination, observed that distinct silos of data “can be pieced together with other data collections particularly when individual integrated information systems are built up – to add up to a partial or virtually complete personality profile,” and that too with, “the person concerned having no means of controlling its truth and application.”368 Of crucial importance is the Court’s observation that the right to informational self-determination is particularly endangered because 367Jürgen Bröhmer et al., “BVerfGE 65, 1 - Census Act” in 60 Years German Basic Law: The German Constitution and its Court - Landmark Decisions of the Federal Constitutional Court of Germany in the Area of Fundamental Rights (Suhainah Wahiduddin ed.), (2012) at Pages 147-148, available at http://www.kas.de/wf/doc/kas_32858-1522-1-30.pdf?121123115540 368 Census Act Case, (1983) 280 PART H in reaching decisions, one no longer has to rely on manually collected registries and files. Today, the technical means of storing individual statements about personal or factual situations of a certain or verifiable person with the aid of automatic data processing are practically unlimited and can be retrieved in a matter of seconds irrespective of distances.369 The Court noted, however, that the right to informational self-determination is not absolute and that public sector entities could collect personal data under certain conditions. The Court held that there must be a statutory basis for this informational activity, and that it must satisfy the principle of proportionality.
On the need for a statutory basis, the Court held that:
“The use of the data is limited to the purpose specified by law.
If for no other reason than because of the dangers associated with automated data processing, protection is required against unauthorized use - including protection against such use by other governmental entities - through a prohibition on the transfer and use of such data”370 “Clearly defined conditions must be created for processing to ensure that individuals do not become mere data subjects in the context of the automated collection and processing of the information pertaining to their person. Both the absence of a connection with a specific purpose that can be recognized and verified at all times and the multifunctional use of data, reinforce the tendencies that are to be checked and restricted by data-protection legislation, which represents the concrete manifestation of the constitutionally guaranteed right to informational self-determination.”371 On the principle of proportionality, the Court held that:
“The legislature must in its statutory regulations respect the principle of proportionality. This principle, which enjoys constitutional status, follows from the nature of the 369Census Act Case, (1983) 370 Ibid, at page 150.
371 Ibid, at page 151 281 PART H fundamental rights themselves, which, as an expression of the general right of the public to freedom from interference by the state, may be restricted by the public powers in any given case only insofar as indispensable for the protection of public interests … In view of the threats described above that arise from the use of automated data processing, the legislature must more than was the case previously, adopt organizational and procedural precautions that work counter to the threat of violation of the right of personality …”372 “The survey program of the 1983 Census Act also satisfies, to the extent relevant to the matter under review, the principle of proportionality. A measure to achieve the intended purpose must therefore be suitable and necessary; the intensity of the attendant action may not be disproportionate to the importance of the matter and the compromises imposed upon the public.”373 The Court concluded that according to the principles of purpose specification and proportionality, not only must the purpose for which data is being collected be specified at the time of collection, but the data acquired must also not exceed that which is absolutely necessary for accomplishing the specified purpose. In light of this, the Court directed the German Parliament to amend the law in certain particulars before the census could be carried out, and to close all loopholes in the law that may lead to abuses in the collection, storage, use and transfer of personal data. 208 The ECtHR dealt with whether retention of DNA samples of individuals who were arrested but who were later acquitted or had charges against them dropped was a violation of the right to privacy. In S and Marper v United 372 Ibid, at page 149 373 Ibid, at page 154 282 PART H Kingdom,374 the ECtHR noted the “blanket and indiscriminate nature of the power of retention”:
“The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken—and retained—from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences.
The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.”375 The Court concluded that the retention constituted a disproportionate interference with the Applicants’ right to privacy:
“125…That the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society…” (Emphasis supplied) The Court rejected the government’s arguments that fingerprints constituted neutral, objective, irrefutable and unintelligible material, holding that they contained unique information about an individual, allowing their precise 374 (2008) 48 EHRR 1169 375 Ibid, at Paragraph 119 283 PART H identification in certain circumstances. The Court concluded that the collection of fingerprints was therefore capable of affecting private life, and retention of such information without consent “cannot be regarded as neutral or insignificant.” 209 In 2012, the French Constitutional Council (“Council”) – the body that reviews the constitutionality of French laws – declared four provisions of the Identity Protection Act, which proposed the introduction of a new national biometric ID for citizens, to be unconstitutional.376 Articles 3 and 5 were among the provisions that were struck down. Article 3 authorized that the national ID card may contain data which would enable the holder to identify himself or herself on electronic communication networks or use his or her electronic signature. The Article stated that:
“If requested by its holder, the national identity card may also contain data, stored separately, enabling it to identify itself on electronic communication networks and to affix its electronic signature. Upon each use, the interested party shall decide which identification data are to be transmitted electronically.” The Council observed that Article 3 did not stipulate the nature of the data that was being collected, nor did it provide any guarantee of maintaining confidentiality. Thus, the Council declared Article 3 to be unconstitutional:
“that the provisions of Article 3 do not specify either the nature of the “data” through which these functions may be implemented or the guarantees ensuring the integrity and confidentiality of this data; that they do not define in any 376Decision No. 2012-652 DC of 22 March 2012 by Le Conseil Constitutionnel, available at http://www.conseil-
constitutionnel.fr/conseil-constitutionnel/english/case-law/sample-of-decisions-in-relevant-areas- dc/decision/decision-no-2012-652-dc-of-22-march-2012.105428.html 284 PART H greater detail the conditions under which the persons implementing these functions are to be authenticated, especially when they are minors or are subject to legal protection; that accordingly, Parliament acted in excess of its powers; that accordingly Article 3 must be ruled unconstitutional;” Article 5 allowed for the establishment of a database of personal information which would include, in addition to the marital status and residence of the holder, their height, eye colour, fingerprints and photograph for the issuance of French passports and national ID cards and for conducting investigations involving certain offences if authorised by a public prosecutor or a judge. The Council relied on Article 34 of the French Constitution to hold that it was incumbent upon the Parliament to strike a balance between safeguarding public order and bringing offenders to justice on one hand, and the right to privacy on the other. The Council placed reliance on the Declaration of the Rights of Man and the Citizen of 1789. Article 2 of the Declaration states “The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are liberty, property, safety and resistance to oppression”. The Council held that the liberty proclaimed by Article 2 includes the right to respect for private life, and accordingly, that “the collection, registration, conservation, consultation and communication of personal data must be justified on grounds of general interest and implemented in an adequate manner, proportionate to this objective.” The Council held that Article 5 violated the French Constitution as the nature of the data collected was such that it would facilitate the identification of French 285 PART H citizens on the basis of their fingerprints, thus breaching the right to respect for private life:
“Considering however that, given its object, this database containing personal data is intended to collect data relating to almost all of the population of French nationality; that since the biometric data registered in this file, including in particular fingerprints, are themselves liable to be compared with physical traces left involuntarily by an individual or collected unbeknown to him, they are particularly sensitive; that the technical characteristics of this database as defined by the contested provisions enable it to be consulted for purposes other than the verification of an individual's identity; that the provisions of the act referred authorise this database to be consulted or viewed not only in relation to the issue or renewal of identity and travel documents or to verify the holder of such a document, but also for other purposes of an administrative nature or by the investigating police;… …having regard to the nature of the data registered, the scope of this processing, its technical characteristics and the conditions under which it may be consulted, the provisions of Article 5 violate the right to respect for privacy in a manner which cannot be regarded as proportionate to the goal pursued; that accordingly, Articles 5 and 10 of the act must be ruled unconstitutional…” (Emphasis supplied) Subsequently, Law 2012-410 of March 27, 2012, on Identity Protection was published in the official gazette of France, without Articles 3 and 5, which had been rendered unconstitutional by the Council.377 210 Aycaguer v France378 concerned the applicant’s refusal to undergo biological testing, the result of which was to be included in the national computerised DNA database. As a result of his refusal, he was convicted. The ECtHR held that the regulations on the storage of DNA profiles did not provide 377LOI n° 2012-410 du 27 mars 2012 relative à la protection de l'identité, available at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000025582411&dateTexte=&categorieLien =id.
378 Application no. 8806/12 286 PART H individuals with sufficient protection, due to its duration and the fact that the data could not be deleted. The Court concluded that the regulations failed to strike a balance between competing public and private interests and held, unanimously, that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. 211 The Conseil d'Etat379 in Association pour la promotion de l'image 380 was asked whether a decree regulating the use and storage of data from biometric passports was lawful. One of the stipulations of the decree was that eight fingerprints were stored by the authorities, while only two were required for the passport. The Conseil d'Etat stated that the collection and retention of six more fingerprints to be centrally stored was irrelevant and excessive in relation to the purpose of the computerized database. 212 In Digital Rights Ireland Ltd v Minister,381 the Court of Justice of the European Union held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the Charter of Fundamental Rights of the European Union – Articles 7, 8 and 52(1) – by adopting the Data Retention Directive. According to the Directive, member states were obliged to store citizens’ telecommunications data for a minimum of 6 months and a maximum of 24 months. The Directive empowered police 379The Conseil d’Etat (Council of State) is a body of the French government that acts as legal advisor of the executive branch and as the supreme court for administrative justice 380 Conseil d’ Etat in France, 26 October 2011 381 C‑293/12 and C‑594/12 287 PART H and security agencies to request access to details such as IP address and time of use of all e-mails, phone calls and text messages sent or received. The Court applied the test of proportionality to the measures. It was noted that metadata allows officials to make precise conclusions about a person’s private life, and dragnet data collection creates a chilling effect based on the sense that one’s life is subject to surveillance at all times. On the nature of metadata, the Court observed that:
“Taken as a whole, [metadata] may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”382 The Court found that surveillance serves an important public interest – public security – and that the right to security is itself a fundamental right under Article 6 of the Charter.383 However, the Court adopted a two-pronged proportionality test to conclude that the Directive’s retention and access requirements were not proportional to that interest.
“…According to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives.”384 382 Ibid, at para 27 383 Ibid, at para 42 384 Ibid, at para 46 288 PART H The retention measure was held to be unnecessary to fulfill the objective of fighting against serious crime:
“As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques.
However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight. (Emphasis supplied)”385 The Court criticized the Directive for failing to lay down any clear or precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It observed that the Directive was overbroad because it applied to all data, regardless of the existence of suspicion, and contained no criteria for limiting government access or safeguards for preventing abuse: