JUSTICE PUTTASWAMY (RETD.) AND ANR.

V UNION OF INDIA AND

ORS. (AADHAR CASE)

BACKGROUND

The case arose out of a challenge to a constitutional challenge to the Aadhaar project, which
aims to build a database of personal identity and biometric information covering every Indian.
More than a billion Indians have so far been registered in the Aadhaar programme, which sees
citizens issued with a 12-digit number that aligns to specific biometric data such as eye scans and
fingerprints. Registration is now become mandatory for filing tax returns, opening bank
accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees
(£610) and above.

In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the
constitutionality of Aadhaar on the grounds that it violates the right to privacy.

The Government argued that there was no constitutional right of privacy in view of a unanimous
decision of eight judges in M.P. Sharma v. Satish Chandra ([1954] SCR 1077) and a decision by
a majority of four judges in Kharak Singh v. State of Uttar Pradesh ([1964] 1 SCR 332).

The case came before a three judge Bench of the Court which, on 11 August 2015, ordered that
the matter should be referred to a larger Bench of the Court. On 18 July 2017, a five judge
Constitution Bench ordered the matter to be heard by a nine judge Bench. While it awaited
clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar
passed an interim order restricting compulsory linking of Aadhaar for benefits delivery

FACTS OF THIS CASE

 In this case, the Government of India presented a project titled “Unique Identification for
the below poverty line families”. And for that purpose, there was a committee that was
established that initiate its work by giving a suggestion for a unique Identification
database.
 This Unique Identification Database meant for the establishment of 3 phased projects.
 In January, 2009the Planning Commission of India passed a notification on Unique
Identification Database(UIDAI).
 After that in 2010, the National Identification Authority of India bill 2010 was introduced
in the parliament.
 In November 2012 retired Justice K.SPuttaswamy and Mr. Pravesh Sharma filed a Public
Interest Litigation writ petition of civil nature No.494 of 2012 in the Supreme Court
challenging the validity of the Aadhaar.
 In that public Interest Litigation, writ petition team has specifically challenge ground that
it violates the fundamental rights of the citizens of the country that is Right to Privacy
that comes under the ambit of Article 21 of Indian Constitution
 Many of the orders were passed in the petition from time to time basis.
 But in 2016 with the enactment of the Aadhaar Act, these petitioners challenging the of
Aadhar filed a new petition challenging the validity of the Aadhaar act.
  Afterward, all the petitions were combined.
 In mid-2017 the former Union Minister and the Congress leader Jairam Ramesh accessed
towards Supreme Court challenging the decision to treat Aadhar bill as a money bill.
 Finally on August 24, 2017, nine judges bench of apex court giving the verdict that is the
right to privacy considered to be a fundamental right under Article 21 of the Constitution
of India.
 On January 17, 2018, the court begins the hearing of the Aadhaar case and commence the
proceedings of the case
 Then on April 25, 2018, the Supreme Court of India questioned the state regarding the
mandate of seeding Aadhar with mobile.
 Finally on September 26, 2018, the apex court upheld the constitutional validity of the
Aadhaar card and removes certain illogical provisions of the Aadhar act.

CONTENTIONS OF BOTH THE PARTIES

 On the behalf of the petitioner

The petitioner urged that Aadhar card is unclarified which creates confusion in many cases. The
petition also argued rather than extending the subsidies, benefits specifically for that section of the
society for which they are meant. The prominent issue in which the petitioner focuses on the effects
of the Aadhar scheme on the protection and the preservation of individual rights and liberties which
are in danger with the implementation of the same act. According to them the implementation of
the Aadhar scheme will be against the morality. It was also argued by the petitioner side right to
privacy is an integral part of the right to life and liberty under the ambit of Article 21of the
Constitution of India. Along with this the implementation of aadhar scheme will be the instrument
of Article 14 as well as Article 19 of the Constitution of India Other than this it was also argued
subsidies and benefits given to the specific section of the society will result to the discriminatory
treatment to the other sections of the society and the violation of Article 25 of the Indian
Constitution. Moreover, the major argument was that the Aadhaar scheme would act as a burden
for the citizens of the country as they would be under the constant surveillance of the state which
has its own side effects.

 On behalf of the respondent

On an affidavit, the respondent stated that the attempt of respondents would show that no
individual who is eligible for the benefits will be deprived of getting those benefits. The respondent
bottle on the argument made by the petitioner that is the surveillance of the state by saying that the
information obtained by the citizens of the country will be of minimal nature. For that purpose,
only the demographic information is to be obtained which includes name, date of birth, address,
gender, mobile number, and email address. The last two optional for getting the OTP code for the
authentication purpose. Also laid down that the information was limited to the fingerprints and iris
scan. Such information will be obtained for ascertaining the identity of a person.
JUDGMENT

The nine judges of the Court gave six separate opinions, producing what must be a contender for
the longest reasoned judgment ever produced by a court. These judgments defy short summary
and only a few key themes can be picked out.

The leading judgment is a tour de force, given on behalf of four judges by Dr D Y Chandrachud
J in 266 pages. It deals, in detail, with the Indian domestic case law on privacy and the nature of
constitutional rights. It also considers Comparative Law on Privacy (from England, the US,
South Africa, Canada, the European Court of Human Rights and the Inter-American Court of
Human Rights). Various criticisms of the privacy doctrine – from Bork, Posner and feminist
critics – are addressed.

The problem for the Petitioners was that the Indian Constitution [pdf] does not contain an
explicit privacy right. Nevertheless, the Indian Constitution is a living instrument. The Courts
have sought to give effect to the “values” which the Constitution it contains by interpreting
express fundamental rights protections as containing a wide range of other rights. The crucial
provision for this purpose is Article 21 which provides that

“No person shall be deprived of his life or personal liberty except according to procedure
established by law”

Chandrachud J points out that this provision has been interpreted as containing, inter alia, the
rights to a speedy trial, legal aid, shelter, a healthy environment, frredom from torture, reputation
and to earn a livelihood (for a list see [150]). Privacy is an incident of fundamental freedom or
liberty.

In an important section of the joint judgment headed “Essential Nature of Privacy”, Chandrachud
J analyses the concept of privacy as being founded on autonomy and as an essential aspect of
dignity ([168] to [169]):

“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty
and freedom which the Constitution has recognised. Privacy is the ultimate expression of the
sanctity of the individual. It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice and self-determination”
[169]

In the next section of the judgment Chandrachud J considers “Informational Privacy”, referring
to a range of academic writing. In particular, the judgment includes an infographic from an
article by Bert-Jaap Koops et al., “A Typology of Privacy” to illustrate the fundamental notions
of privacy:

The judgment refers with approval to the 2012 Report of the Expert Group on Privacy [pdf] –
which sets out nine principles (which have much in common with the EU data protection
principles).
The conclusions are set out at pages 260-265 of the joint judgment. It is held that privacy is a
constitutionally protected right which emerges, primarily, from Article 21 of the
Constitution. This is not an absolute right but an interference must meet the threefold
requirement of (ii) Legality; (ii) the need for a legitimate aim and (iii) proportionality (p.264). It
is also noted that, as informational privacy is a facet of the right to privacy the Government will
need to put in place a robust regime for data protection.

Two other important points are dealt with in the joint judgment.

Firstly, it emphasises the fact that sexual orientation is an essential attribute of privacy thus
casting doubt on the case of Suresh Kumar Koushal v. Naz Foundation (2014) which
upheld section 377 of the Indian Penal Code, which effectively criminalizes same-sex
relationships between consenting adults. A reconsideration of Suresh Koushal is pending before
a constitution bench of the Supreme Court.

Secondly, Chandrachud J overturns the judgment of his father (Chandrachud CJ) in the notorious
case of ADM Jabalpur v Shivakant Shukla (1976) which held that fundamental rights could be
suspended during the Emergency ([121]). Though the ADM Jabalpur judgment was nullified by
44th constitutional amendment it has now finally been put to rest. In his concurring judgment
Sanjay Kishan Kaul J commented

“the ADM Jabalpur case … was an aberration in the constitutional jurisprudence of our country
and the desirability of burying the majority opinion ten fathom deep, with no chance
of resurrection”

R F Nariman J gave a judgment of 122 pages and four other judges gave substantive concurring
judgments.

By its order the Court ruled that the right to privacy is protected as part of the right to life and
fundamental liberty under Article 21. The case was referred back to the original bench three
judges for decision on the merits.

COMMENT

This decision has been recognised as being of great legal and political significance. The
Opposition Congress party leader said that it “will rank among the most important judgments
delivered by the Supreme Court since the advent of the constitution of India.” The Hindustan
Times commented that “The country could not have got a better gift from the judiciary for its
70th year of independence”. The case has been seen as a major setback for the Modi
Government.

A striking feature of the joint judgment is the detailed treatment of issues of digital
privacy which are of increasing important both in India and internationally.

The future of the Aadhaar programme has been placed in doubt and, in the light of the comments
of the majority there is a strong possibility that the Supreme Court will now strike down
legislation criminalising same-sex relationships. The joint judgment makes it clear that the
Indian Government is now under an obligation to establish a data protection regime to protect the
privacy of the individual.

The constitutional right to privacy can now be used to challenge to bans on beef and alcohol
consumption in many Indian states. BJP-dominated governments around the country
implemented the bans as part of their efforts to enshrine Hindu religious practices into the law.

The decision has been welcomed by Indian and international commentators, it puts the right to
privacy at the heart of constitutional debate in the world’s largest democracy and is likely to
provide assistance and inspiration for privacy campaigners around the world.

As per my view, the Aadhaar project was one issue’s project of Government of India which is
initiated as a scheme to provide a Unique Identification Number to the marginalised section of
the society to empower them and giving them a special status and identification to them. And
consideration of Right to privacy as a fundamental right under the ambit of Article 21 of the
constitution can be called as a necessary step by the judicial system of our country. Along with
this Aadhaar’s decision clear the way for private entities to use the authentication mechanism.
Moreover, after this judgment, the right to privacy is taken to be an important entity that is
prominent for the protection of individuals’ rights.
SUBMISSION FOR PARTIAL FULILMENT OF 9TH SEMESTER
PROJECT TO BE SUBMITTED FOR INTERNAL ASSESSMENT

JUSTICE PUTTASWAMY (RETD.) AND ANR.

V UNION OF INDIA AND ORS.
(AADHAR CASE)
Concerned Subject: Litigation Advocacy, Professional Ethics
Submitted to: Mrs.Priyanka Dutta
(Faculty of Litigation Advocacy, Professional Ethics)

Submitted by: Neha Saifi

15GSOL103085
(BBA LLB SEC.B)