404

ONAL
JUSTICE K.S. PUTTASWAMY
ATI PR
MR (RETD.) & ANR. VS.
UNION OF INDIA & ORS.

IV
/INFO

AC
Y/ INFO
ACY

(2019) 1 SCC 1
IV

M PR R
ATI
ONAL

2018
Case Status NOT The case upheld the validity of the Aadhaar
OVERRULED Act while striking down certain provisions
of the Act, which encroached upon the right
to privacy.
Case Type CIVIL WRIT
PETITION

Additional
Aspect(s)
of Privacy
DIGNITY

Constitutional ARTICLES
Provision(s)
14,19,21,110

Bench
Strength 5
JUDGES
1 majority opinion by
Justice A.K. Sikri on behalf of
Justice D. Misra,
A.M. Khanwilkar and himself,
Number of
Opinion(s)
3/1
OPINIONS DISSENT
1 partially concurring opinion by
Justice A. Bhushan, and
1 dissenting opinion by
Justice D.Y. Chandrachud.
“Having due regard to the test of proportionality which has
been propounded in Puttaswamy and as elaborated in this
judgment, we do not find that the decision to link Aadhaar
numbers with mobile SIM cards is valid or constitutional.
The mere existence of a legitimate state aim will not justify
the means which are adopted. Ends do not justify means,
at least as a matter of constitutional principle. For the
means to be valid, they must be carefully tailored to
achieve a legitimate state aim and should not be either
disproportionate or excessive in their encroachment on
individual liberties.”

I
n this case, the Supreme Court upheld the contested, with the Petitioners arguing that the
constitutional validity of the Aadhaar (Target- use of Aadhaar to track and profile individuals
ed Delivery of Financial and Other Subsidies, violated the Constitution and constructed a
Benefits and Services) Act, 2016 (Aadhaar Act) surveillance state.
and declared that its legislative passage as a
Money Bill was legal and valid, although Justice The Court held that using Aadhaar for the
D.Y. Chandrachud dissented. purpose of welfare schemes was constitutional,
and upheld the mandatory linking of Aadhaar
The Court was tasked with reviewing 27 different with PAN cards. The mandatory linking of
petitions, each challenging a distinct aspect of the Aadhaar to bank accounts, on the other hand, was
Aadhaar system. For instance, the Court was declared unconstitutional as the provision did not
required to decide whether it was legal to man- meet the test of proportionality and thus, violated
date the use of Aadhaar to receive government the right to privacy. In its majority judgment, the
subsidies given the possibilities of exclusion of Court also struck down Section 57 of the Aadhaar
beneficiaries. The infringement of the fundamen- Act, holding that private companies could not
tal right to privacy by the Aadhaar Act was also require citizens to provide their Aadhaar numbers
for the provision of services.

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Facts Issues

In 2009, the Indian Government devised the A) Whether the Aadhaar Project created or had
Aadhaar project as a universal identification the tendency to create a surveillance state and
system to better track disbursement of services was unconstitutional on this ground;
provided by it. The Aadhaar project entailed the B) Whether the Aadhaar Act and Section 139AA
collection of biometric information of individuals of the Income Tax Act, 1961 (IT Act) violated
to be used for identification and authentication of the right to privacy and were unconstitutional
service delivery and was initially begun by way of on this ground;
an executive order in 2009. The Aadhaar project C) Whether children could be brought within the
received statutory sanction by the enactment of sweep of Sections 7 and 8 of the Aadhaar Act;
the Aadhaar Act in 2016. However, the Aadhaar D) Whether the Aadhaar Act could be passed as a
project attracted public scrutiny and eventually ‘Money Bill’ within the meaning of Article 110
both the administrative action as well as the of the Constitution; and
Aadhaar Act were challenged before the Supreme E) Whether other sections of the Aadhaar Act
Court for violating the Constitution, including the were unconstitutional.
right to privacy. The first writ petition was filed in
2012, but doubts were raised as to the existence of Arguments
the right to privacy as a fundamental right, which
led to the constitution of a nine Judge Bench in the The arguments from the Petitioners’ side largely
case of K.S. Puttaswamy and Anr. vs. Union of India pertained to privacy, surveillance, data protection,
((2017) 10 SCC 1), (Puttaswamy I). Puttaswamy I consent and the legislative process. The Petition-
affirmed the right to privacy as a fundamental ers argued that the information collection for
right, following which the Court posted the Aadhaar was mishandled since the Unique Identi-
matter for final hearing in 2018 before a five Judge fication Authority of India (UIDAI) had employed
Constitution Bench. several third parties for the work. Further, they

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 Decision
argued that the project was laying the ground-
work for a surveillance state. With regard to The Supreme Court upheld the constitutional
consent, they argued that by making Aadhaar validity of the Aadhaar Act, its passage as a
compulsory for basic services and daily require- Money Bill, and the use of compulsory
ments like banking, SIM cards, phone connec- Aadhaar-based identification for those State
tions, people were not practically in a position to welfare schemes, the expenditure of which was
withhold consent and that the idea of consent borne out of the Consolidated Fund of India.
was, therefore, illusory in nature. The Petitioners
also argued that by making biometric authentica- On the question of whether the project created or
tion a prerequisite for getting subsidies, exclusion had the tendency to create a surveillance state, the
from welfare benefits had increased. The Petition- Court said that neither the structure of Aadhaar
ers submitted that the objective of creating a single nor the provisions under the Act created a surveil-
pervasive identification over time was illegal and lance state. Taking from arguments presented by
thus rendered the Aadhaar Act violative of Article the UIDAI, the Court said: only ‘minimal’ biomet-
14. Finally, the legislative passage of the Aadhaar ric data was collected during the process; the
Act as a Money Bill was questioned by the UIDAI was purpose blind as it did not gather the
Petitioners and it was argued that bypassing the purpose, location or other information related to
Rajya Sabha was unlawful and therefore the Act the transaction; the collated data was siloed, the
was inherently invalid due to the problematic merging of which was banned; the process of
legal process behind its enactment. authentication was shielded from the internet and
that ample security measures were undertaken;
The Respondents argued that the information and the use of only registered devices was man-
gathered for the Aadhaar project was non-inva- dated for requests related to authentication.
sive and non-intrusive identity information. It Therefore, the Court held that it was extremely
was argued that the Aadhaar scheme and the difficult to profile individuals based on their
manner in which it operated excluded every biometric and demographic information stored in
possibility of data profiling and, therefore, the CIDR. Certain provisions relating to data protec-
question of State surveillance would not arise. It tion were strengthened by the Court, which
was also argued by the Respondents that identity ordered that authentication records were not to be
information data resided in the Central Identities stored for a period longer than six months, as
Data Repository (CIDR) which was not in the opposed to the permitted five years under the Act.
control of the Government or the Police force. The
Respondents further argued that enough On the question of whether the Act violated the
safeguards were in place in the Aadhaar Act to right to privacy, the Court referred to the 2017
avoid any data breaches. The Respondents decision in Puttaswamy I where privacy was
submitted that the tests laid down in Puttaswamy I declared to be a fundamental right, and stated that
had been satisfied and hence the Aadhaar Act was any invasion of the right, to be justifiable, must
not unconstitutional. meet the three fold requirement of (i) legality,

3
which postulates the existence of law; (ii) need, However, certain sections of the Aadhaar Act
defined in terms of a legitimate State interest, and were struck down as unconstitutional. Section 57
(iii) proportionality, which ensures a rational which allowed the use of Aadhaar by private
nexus between the object and the means adopted. companies was one such provision. The judgment
In the opinion of the Court, the very existence of stated that the term ‘any purpose’ in Section 57
the Aadhaar Act coupled with the aim of delivery was vulnerable to misuse and that permitting any
of welfare benefits passed the first two prongs of company or person to use Aadhaar for authentica-
the test. The Court stated that the third require- tion, based on a contract, would allow exploita-
ment of proportionality had also been met as the tion of private data and was thus violative of the
purpose of the Aadhaar Act was to accurately right to privacy. Section 47 of the Act which
identify the beneficiaries of State welfare schemes provided that only UIDAI could file a complaint
and that it achieved the balancing of two funda- in case of violation of the Act, was struck down,
mental rights with privacy on one hand, and the and it was directed that the provision must be
right to food, shelter and employment on the amended to include any individual/victim whose
other. While Section 139AA of the IT Act which right has been violated. Regulation 27 that provid-
provided for mandatory Aadhaar-PAN linkage ed for storage of data for a period of five years was
was upheld, the mandatory linkage of Aadhaar struck down, and it was held that reten-
with bank accounts was held to not satisfy the test tion for a period longer than six months was
of proportionality and was struck down. Similar- not permissible.
ly, the mandatory linkage with mobile numbers
was not upheld. In his dissenting opinion, Justice D.Y. Chandra-
chud made several notable points with regard to
On the question of whether children could be privacy violations by the Aadhaar project and
brought within the sweep of Sections 7 and 8 of Aadhaar Act. He held that the legislative passage
the Aadhaar Act, it was held that for a child’s of Aadhaar Act as a Money Bill was unconstitu-
enrolment into the Aadhaar programme, parental tional. He noted that adequate norms needed to
consent was mandatory and that such enrollees be laid down for each step from the collection to
were entitled to opt-out on attaining the age of retention of biometric data based on informed
majority. consent, along with specifying the time period for
retention; individuals must be given the right to
On the question of whether the Aadhaar Act could access, correct and delete data; and an opt-out
be passed as a Money Bill within the meaning of option should be necessarily provided. He point-
Article 110 of the Constitution, the Court stated ed that the Aadhaar Act was bereft of these priva-
that considering the fact that the aim of the Act cy safeguards. He also raised questions on the
was to create a unique identification so that independence and accountability of the UIDAI.
deserving beneficiaries were able to access subsi-
dies or services, the expenditure of which was Justice D.Y. Chandrachud stated that while the
drawn from the Consolidated Fund of India, the requirement of a legitimate state aim was met, the
Aadhaar Act was validly passed as a Money Bill. Aadhaar Act did not meet the requirements of

4
 necessity and proportionality. He added that the
legitimate aim of the State could be fulfilled by
adopting less intrusive measures as opposed to
the mandatory enforcement of the Aadhaar
scheme as the sole repository of identification. In
his opinion, the State had failed to satisfy the
Court that the targeted delivery of subsidies
which bolstered the right to life entailed a neces-
sary sacrifice of the right to individual autonomy,
data protection and dignity when both these
rights were protected by the Constitution. He
further held that Aadhaar violated the principles
of informational privacy, informational self-deter-
mination and data protection. He reiterated the
point that Aadhaar bore the risk of creating a
surveillance state and stressed the additional risks
of commercial profiling of individuals and poten-
tial swaying of elections. He also held that in the
absence of an independent regulatory and moni-
toring framework which provided robust
safeguards for data protection, the Aadhaar Act
was violative of Article 14. Finally, Justice D.Y.
Chandrachud stated that the Aadhaar Act was
overly-broad and not effectively limited.

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