AUTHOR- Kareena Wadhwani, Indore Institute of Law.
On 24th August 2017, nine- judge bench of Supreme Court ruled that right to privacy is a constitutionally protected fundamental right. This case was brought up by retired judge of High Court, K.S. Puttaswamy in which he challenged the constitutionality of AADHAR introduced by Government in year 2011. It was basically a biometric- based identity card which was compulsory for everyone in order to have access to government subsidies and schemes. This is a landmark case which became a debatable issue at that time and came up with new challenges for legislation. This was the second longest hearing that was done after Keshavananda Bharti v. State of Madras case. This landmark judgement including 547 pages was celebrated widely.
In January 2009, Planning Commission released a notification on UIDAI that was followed with the introduction of National Identification Authority of India Bill, 2010. K.S. Puttaswamy, a 91- year old retired judge of High Court filed a writ petition in Supreme Court that challenged the validity of AADHAAR policy introduced by UPA government. It was because the Aadhaar project was based on biometric information and personal database of the people and included proper eye scan and fingerprint to issue citizens a 12- digit identity number. Besides this, former Union Minister and Congress leader Jairam Ramesh moved to Supreme Court challenging the decision to treat Aadhaar bill as money bill because it was passed as a money bill in Lok Sabha. It was challenged before a three- judge bench on the ground that it violated Right to Privacy. Attorney General, on the behalf of union, argued that Indian Constitution didn’t provide this right as observed in Kharak Singh v. State of Uttar Pradesh (five- judge bench) and M.P. Sharma v. Satish Chandra (eight- judge bench). To determine the answer a nine judge bench was formed.
Issues of the Case
Following issues were involved in this case:
· Whether Aadhaar act aimed at creating a surveillance state, and thus is unconstitutional on the ground of Right to Privacy?
· Whether the Aadhaar Act can be passed as money bill with the ambit of Article 110 of the Constitution?
· Whether the decisions passed in other cases that Right to Privacy is not a fundamental right under Article 21?
The Constitution of India- Article 14, Article 19, Article 21, Article 109, Article 110, Article 111, Article 300A,
Authentic Regulations, 2016- Section 7, Section 27, Section 33(1), Section 33(2), Section 57
Income Tax Act- Section 139AA
The nine- judge constitutional bench gave decision that Right to Privacy is inherent part guaranteed under Article 21 of Constitution, i.e. Right to Life and Personal Liberty. A plurality opinion was written by D.Y. Chandrachud on behalf of three other judges and remaining five judges provided concurring opinions. However, both the plurality and concurring opinions provided are not binding and cannot be considered as precedents. Because of this reason, only this binding part of the judgement was signed by all the nine judges. As per that, the decision of M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962) was overruled. In simple words, we can interpret that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
Ratio Decidendi of the case:
It basically refers to the important part of the judgement that is required to reach at conclusion of case. Before moving further, it is necessary to state Article 110 of Indian Constitution that says: 1) A Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:
a) the imposition, abolition, remission, alteration or regulation of any tax;
b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
c) the custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;
d) the appropriation of moneys out of the consolidated Fund of India;
e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State;
2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes
3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final
4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under Article 109, and when it is presented to the President for assent under Article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill
Following is the ratio of the case, with an analysis of the same-
1. It was held that Aadhaar card is more efficient than other identity proofs and therefore its concept should be applied to country. It provides identity to individuals that is unique in nature and helps to avoid duplication of that identity. Supreme Court supported the validity of Aadhaar and made it mandatory to avail subsidies and services provided by government.
2. Afterwards, three aspects of Right to Privacy were explained by Nariman J. and those were,
· Interference with an individual’s body (that was really important in the landmark judgement of Navtej Singh Johar v. Union of India).
· Privacy of information taken for unauthorized use.
· Autonomy of an individual over their private choices.
3. Dissenting opinion: It was decided by D.Y. Chandrachud while writing the plurality opinion that Right to Privacy is not absolute right unlike other fundamental rights provided in Part 3 of the Constitution. However, it is an unalienable human right that is natural. He rejected the idea of information sharing with government and defined its threats and requirement of privacy protection laws. He stated that it was unnecessary interference in the individual privacy and restricted its implementation. Also he held the whole act to be unconstitutional because it was passed as money bill as defined under Article 110 of Indian Constitution. He also focused on positive and negative viewpoints of this act. Similar to former, J. Bobde said that the motive of fundamental rights is to provide situations for development of individual dignity and to balance legislative powers and opposed it.
4. The court also laid down three tests to violate the right to privacy, these are;
· Legality of the object- The first and foremost test that any legislation must surpass is regarding the constitutionality of the subject matter for which personal informational of an individual is used. If the aforementioned test is passed, it state can use the data.
· Legitimate aim- If the aim of acquiring of this information is in the favour of public interest, i.e. for the development of individuals and society, the government has right to utilize this information.
· Proportionality- There must be a proper maintenance of balance in useful and non- useful data. The government has no right to know very personal details.
If these three requirements are met, government can infringe right to privacy provided to individuals.
5. In response to the petition filed by K. Puttaswamy and others, some provision of Aadhaar Act and other acts were deleted. These were:
· Regulation 27(1) of Authentic Regulations, 2016- This provision of regulations allows UIDAI to retain META data (data about data) for a time period of 5 years. The part that mentioned the period of 5 years was declared unconstitutional and it was told not to retain any data beyond 6 months.
· Regulation 27 of Authentic Regulations, 2016- This regulation of Authentic Regulations enabled the UIDAI to maintain and keep data that is relevant to authentication of Aadhaar number of any person. This storage and maintenance of data was considered impermissible.
· Section 57 of Aadhaar Act, 2016- This section permitted the private entities to use identity of an individual for authentication. It was a matter of concern because providing such confidential information can be dangerous as it can be misplaced or misused for personal benefits. This portion was therefore considered unconstitutional by Supreme Court. Also, the compulsion to link Aadhaar with sim card was struck down after the release of notification by Telecom Regulatory Authority of India on 23rd March, 2017 as it didn’t have any legal backup.
· Article 300A of Constitution of India- Linking of bank account with Aadhaar was made mandatory. It was made unconstitutional on the ground that it violated Article 300A of the constitution, i.e. depriving a personal of its personal property, because this link would restrict individual from properly accessing bank account.
· Section 7 of Authentic Regulations, 2016- It was held that Aadhaar is not important for NEET, EGC, CBSE and school admissions as mentioned in Section 7 of this act.
· Section 33 of Authentic Regulations, 2016- As per Section 33(1), disclosure of information was allowed during court order was allowed. However, this particular sub-section was struck down by the Supreme Court with a clarification that the person whose information is disclosed, will be provided a right to be heard. Also Section 33(2) that allowed disclosing information on the ground of National Security was also struck down.
· Section 139AA of Income Tax Act- This section of Income Tax Act mandated linking of PAN (permanent account number) with Aadhaar. This sub-section was also struck down.
The Aadhaar judgement was a very balanced and proper judgement provided by the Supreme Court of India. Keeping in mind the public interest, the provisions violating the fundamental rights guaranteed under Indian Constitution were struck down or held unconstitutional. The introduction of Right to Privacy in this case has provided new ways and requirements for Data Protection Laws in our country. A committee was also setup for the same that included experts followed with a submission to Ministry of Electronics and Information Technology. The decision of Right to Privacy also helped in the upliftment of LGBTQ communities by paving them ways for private relationships among them. The future consequences that this act will bring are still unknown, but at present it has been a successful concept in providing the citizens of country with an identity.
1. Hugh Tomlinson QC (Sept. 4th 2019), India: Puttaswamy v Union of India, Supreme Court recognizes a constitutional right to privacy in a landmark judgment, [online]
Available at- https://inforrm.org/2017/09/04/case-law-india-puttaswamy-v-union-of-india-supreme-court-recognises-a-constitutional-right-to-privacy-in-a-landmark-judgment-hugh-tomlinson-qc/#:~:text=On%2024%20August%202017%2C%20a,constitutionally%20protected%20right%20in%20India.
2. Nidhi Singh (Oct. 5th 2017), Defining the Right to Privacy in India in light of Justice KS Puttaswamy & Anr. v. Union of India, [online]
3. Supreme Court Observer (2017-18), Fundamental Right to Privacy [online]
4. Anurag Bhaskar (Aug 27th 2017), Key Highlights of Justice Chandrachud's Judgment in the Right to Privacy Case, [online]
5. Jaideep Reddy (Apr. 23rd 2019). Right to privacy: SC's verdict on KS Puttaswamy case is landmark, but raises five interesting law and policy issues, [online]
 Kharak Singh v. State of Uttar Pradesh, 1963 AIR 1295, 1964 SCR (1) 332.  M.P. Sharma v. Satish Chandra, 1954 AIR 300, 1954 SCR 1077.  ibid  Article 21 of The Constitution of India, 1950.  Article 110 of The Constitution of India, 1950.  Article 109 of The Constitution of India, 1950.  Article 111 of the Constitution of India, 1950.  Navtej Singh Johar v. Union of India, W. P. (Crl.) No. 76 of 2016, D. No. 14961/2016.  Regulation 27 of Authentic Regulations, 2016.  Section 57 of Aadhaar Act, 2016.  Article 300A of The Constitution of India, 1950.  Section 7 of Authentic Regualtions, 2016.  Section 33 of Authentic Regulations, 2016.  Section 139AA of Income Tax Act, 1961.