JUSTICE K. S.

PUTTASWAMY
[2018] 8 S.C.R.
(RETD.)
1 v. UNION OF INDIA 1

JUSTICE K. S. PUTTASWAMY (RETD.) & ANR. A

v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 494 of 2012)
SEPTEMBER 26, 2018 B
[DIPAK MISRA, CJI, A. K. SIKRI, A. M. KHANWILKAR,
DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Whether the Aadhaar Act
C
violates right to privacy and is unconstitutional on this ground and
whether invasion into right to privacy meets the three fold test as
laid down in Puttaswamy case – Held: Enrolment in Aadhaar
assumes the character of compulsory enrolment for those who want
to avail the benefits under s.7 – Likewise, authentication, as
mentioned in s.8, also becomes imperative – The Parliament has D
now passed Aadhaar Act, 2016 – Therefore, law on the subject in
the form of a statute very much governs the field and, thus, first
requirement laid down in Puttaswamy case i.e. requirement of law
stands satisfied – Aadhaar Act serves legitimate state aim and thus
fulfills the second requirement also – In the Statement of Objects
E
and Reasons, it is inter alia mentioned that though number of social
benefits schemes have been floated by the Government, the failure
to establish identity of an individual has proved to be a major
hindrance for successful implementation of those programmes as it
was becoming difficult to ensure that subsidies, benefits and services
reach the intended beneficiaries in the absence of a credible system F
to authenticate identity of beneficiaries – The rationale behind s.7
lies in ensuring targeted delivery of services, benefits and subsidies
which are funded from the Consolidated Fund of India – In discharge
of its solemn Constitutional obligation to enliven the Fundamental
Rights of life and personal liberty (Art.21) to ensure Justice, Social,
G
Political and Economic and to eliminate inequality (Art.14) with a
view to ameliorate the lot of the poor and the Dalits, the Central
Government has launched several welfare schemes – These schemes
involved 3% of the GDP and a huge amount of public money –
Right to receive these benefits, from the point of view of those who
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2 SUPREME COURT REPORTS [2018] 8 S.C.R.

A deserve the same, has now attained the status of fundamental right
based on the same concept of human dignity – The Constitution
does not exist for a few or minority of the people of India, but “We
the people” – The goals set out in the Preamble of the Constitution
are predominantly or at least equally geared to “secure to all its
citizens”, especially, to the downtrodden, poor and exploited,
B
justice, liberty, equality and “to promote” fraternity assuring dignity
– Aadhaar Act meets the test of proportionality as the following
components of proportionality stand satisfied – A measure restricting
a right must have a legitimate goal (legitimate goal stage) – It must
be a suitable means of furthering this goal (suitability or rationale
C connection stage) – There must not be any less restrictive but equally
effective alternative (necessity stage) – The measure must not have
a disproportionate impact on the right holder (balancing stage).
(Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
D benefits and services) Act, 2016: Whether Aadhaar Act strikes a
fair balance between the two fundamental rights, right to privacy
on the one hand and right to food, shelter and employment on the
other hand – Held: Axiomatically both the rights are founded on
human dignity – At the same time, in the given context, two facets
are in conflict with each other – As the information collected at the
E time of enrolment as well as authentication is minimal, balancing at
the first level is met – Insofar as second level, namely, balancing of
two competing fundamental rights is concerned, namely, dignity in
the form of autonomy (informational privacy) and dignity in the
form of assuring better living standards of the same individual,
F balancing at the second level is also met – Enrolment in Aadhaar of
the unprivileged and marginalised section of the society, in order to
avail the fruits of welfare schemes of the Government, actually
amounts to empowering these persons – On the one hand, it gives
such individuals their unique identity and, on the other hand, it
also enables such individuals to avail the fruits of welfare schemes
G of the Government which are floated as socio-economic welfare
measures to uplift such classes – In that sense, the scheme ensures
dignity to such individuals – Jurisprudence. (Majority Opinion)

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 3

Aadhaar (Targeted Delivery of Financial and other Subsidies, A

benefits and services) Act, 2016: Architecture and structure of the
Act – The UIDAI is established as a statutory body which is given
the task of developing the policy, procedure and system for issuing
Aadhaar numbers to individuals and also to perform authentication
thereof as per the provisions of the Act – For the purpose of
B
enrolment and assigning Aadhaar numbers, enrolling agencies are
recruited by the Authority, which may be a private body/person– To
enable a resident to get Aadhaar number, he is required to submit
demographic as well as biometric information i.e., apart from giving
information relating to name, date of birth and address, biometric
information in the form of photograph, fingerprint, iris scan is also C
to be provided – Aadhaar number given to a particular person is
treated as unique number as it cannot be reassigned to any other
individual – Insofar as subsidies, benefits or services to be given
by the government, the government can mandate that receipt of
these subsidies, benefits and services would be given only on
D
furnishing proof of possession of Aadhaar number (or proof of
making an application for enrolment, where Aadhaar number is
not assigned) – Such individual would undergo authentication at
the time of receiving such benefits etc. – A particular institution/
body from which the said subsidy, benefit or service is to be claimed
by such an individual, the intended recipient would submit his E
Aadhaar number and is also required to give her biometric
information to that agency – On receiving this information and for
the purpose of its authentication, the said agency, known as
Requesting Entity (RE), would send the request to the Authority which
shall perform the job of authentication of Aadhaar number – On
F
confirming the identity of a person, the individual is entitled to receive
subsidy, benefit or service – Aadhaar number is permitted to be
used by the holder for other purposes as well. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Whether the Aadhaar Project
creates or has tendency to create surveillance state and is, thus, G
unconstitutional on this ground – Held: The architecture of Aadhaar
as well as the provisions of the Aadhaar Act do not tend to create a
surveillance state – This is ensured by the manner in which the
Aadhaar project operates – Authentication is a process by which
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A Aadhaar number along with demographic information or biometric

information of an individual is submitted to the CIDR for its
verification – On submission thereof, the CIDR verifies the
correctness or lack of it – While seeking authentication, neither the
location of the person whose identity is to be verified nor the purpose
for which authentication of such identity is required, comes to the
B
knowledge of the Authority. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Salient features of Aadhaar Scheme
– Aadhaar authentication service – Whether there is risk of misuse
of vital information pertaining to an individual – Held: During the
C enrolment process, minimal biometric data in the form of iris and
fingerprints is collected – The Authority does not collect purpose,
location or details of transaction – Thus, it is purpose blind – The
information collected remains in silos – Merging of silos is prohibited
– The requesting agency is provided answer only in ‘Yes’ or ‘No’
D about the authentication of the person concerned – The
authentication process is not exposed to the Internet world – Security
measures, as per the provisions of s.29(3) r/w s.38(g) as well as
Regn 17(1)(d) of the Authentication Regulations, are strictly followed
and adhered to – During authentication, no information about the
nature of transaction etc. is obtained – The Authority has mandated
E use of Registered Devices (RD) for all authentication requests –
With these, biometric data is signed within the device/RD service
using the provider key to ensure it is indeed captured live – The
device provider RD service encrypts the PID block before returning
to the host application – This RD service encapsulates the biometric
F capture, signing and encryption of biometrics all within it –
Therefore, introduction of RD in Aadhaar authentication system rules
out any possibility of use of stored biometric and replay of biometrics
captured from other source – Requesting entities are not legally
allowed to store biometrics captured for Aadhaar authentication
under Regn 17(1)(a) of the Authentication Regulations – The
G Authority gets the AUA code, ASA code, unique device code,
registered device code used for authentication – It does not get any
information related to the IP address or the GPS location from where
authentication is performed as these parameters are not part of
authentication (v2.0) and e-KYC (v2.1) API – The Authority would
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 5

only know from which device the authentication has happened, A

through which AUA/ASA etc. – It does not receive any information
about at what location the authentication device is deployed, its IP
address and its operator and the purpose of authentication – Further,
the authority or any entity under its control is statutorily barred
from collecting, keeping or maintaining any information about the
B
purpose of authentication under s.32(3) of the Aadhaar Act.
(Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Whether enrolment in Aadhaar
is voluntary or mandatory – Held: As per s.7 of the Aadhaar Act in
case an individual wants to avail any subsidy, benefit or services, C
she is required to produce the Aadhaar number and, therefore, it
virtually becomes compulsory for such a person – Therefore, even
if enrolment in Aadhaar is voluntary, it assumes the character of
compulsory enrolment for those who want to avail the benefits under
s.7. (Majority Opinion) D
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Invalidation of the Act on argument
based on probabilistic system of Aadhaar, leading to ‘exclusion’ –
Correctness of – Held: The Authority has claimed that biometric
accuracy is 99.76% – If the Aadhaar project is shelved, 99.76% E
beneficiaries are going to suffer – The entire aim behind launching
this programme is the ‘inclusion’ of the deserving persons who need
to get such benefits – When it is serving much larger purpose by
reaching hundreds of millions of deserving persons, it cannot be
crucified on the unproven plea of exclusion of some. (Majority
Opinion) F

Aadhaar (Targeted Delivery of Financial and other Subsidies,

benefits and services) Act, 2016: s.7 – Scope of – Subsidies, services
and benefits – Held: The Government cannot enlarge the scope of
subsidies, services and benefits – ‘Benefits’ should be such which
are in the nature of welfare schemes for which resources are to be G
drawn from the Consolidated Fund of India – A benefit which is
earned by an individual (e.g. pension by a government employee)
cannot be covered under s.7 of the Act, as it is the right of the
individual to receive such benefit – Notifications which are issued
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A under s.7 of the Aadhaar Act pertain to various welfare schemes

under which benefits, subsidies or services are provided to the
intending recipients – Moreover, in order to avail the benefits, only
one time verification is required except for few services where annual
verification is needed – The ‘benefits’ and ‘services’ as mentioned
in s.7 should be those which have the colour of some kind of
B
subsidies etc., namely, welfare schemes of the Government whereby
Government is doling out such benefits which are targeted at a
particular deprived class. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: ss.7 and 8 – Enrolment of children
C – Whether children can be brought within the sweep of ss.7 and 8
of the Act – On attaining the age of majority, such children who are
enrolled under Aadhaar with the consent of their parents, shall be
given the option to exit from the Aadhaar project if they so choose
in case they do not intend to avail the benefits of the scheme –
D Insofar as the school admission of children is concerned,
requirement of Aadhaar would not be compulsory as it is neither a
service nor subsidy – Further, having regard to the fact that a child
between the age of 6 to 14 years has the fundamental right to
education under Art.21A of the Constitution, school admission
cannot be treated as ‘benefit’ as well – Benefits to children between
E 6 to 14 years under Sarv Shiksha Abhiyan, likewise, shall not require
mandatory Aadhaar enrolment – For availing the benefits of other
welfare schemes which are covered by s.7 of the Aadhaar Act, though
enrolment number can be insisted, it would be subject to the consent
of the parents – No child shall be denied benefit of any of these
F schemes if, for some reasons, she is not able to produce the Aadhaar
number and the benefit shall be given by verifying the identity on
the basis of any other documents – Constitution of India – Art.21A.
(Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
G benefits and services) Act, 2016: s.2(d) – Constitutionality of – Held:
s.2(d) pertains to authentication records, such records would not
include metadata as mentioned in Regn 26(c) of the Aadhaar
(Authentication) Regulations, 2016 – Therefore, this provision in
the present form is struck down. (Majority Opinion)

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 7

Aadhaar (Targeted Delivery of Financial and other subsidies, A

benefits and services) Act, 2016: s.2(b) – Definition of resident –
Apprehension expressed by the petitioners was that it should not
lead to giving Aadhaar card to illegal immigrants – Respondent are
directed to take suitable measures to ensure that illegal immigrants
are not able to take such benefits. (Majority Opinion)
B
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.2(l) – Enrolling agency – s.2(l)
challenged on the ground that the work of an enrolment could not
have been given to a private entity as private entity cannot be
entrusted with the crucial task of explaining the nature of Aadhaar
enrolment and securing informed consent – Held: Having regard to C
the nature of process that has been explained by the Authority, which
ensures that immediately on enrolment, the concerned data collected
by the private entity is beyond its control; it gets encrypted; and
stands transmitted to CIDR, there is no basis of the apprehension
expressed by the petitioners. (Majority Opinion) D
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.29 – Constitutionality of – Held:
s.29 imposes a restriction on sharing information and is, therefore,
valid as it protects the interests of Aadhaar number holders.
(Majority Opinion) E
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.33 – Constitutionality of – Held:
s.33(1) of the Act prohibits disclosure of information, including
identity information or authentication records, except when it is by
an order of a court not inferior to that of a District Judge – This F
provision is to be read down with the clarification that an individual,
whose information is sought to be released, shall be afforded an
opportunity of hearing – If such an order is passed, in that
eventuality, he shall also have right to challenge such an order
passed by approaching the higher court – During the hearing before
the concerned court, the said individual can always object to the G
disclosure of information on accepted grounds in law, including
Art.20(3) of the Constitution or the privacy rights etc. – Insofar as
s.33(2) is concerned, it is held that disclosure of information in the
interest of national security cannot be faulted with – However, for
determination of such an eventuality, an officer higher than the H
8 SUPREME COURT REPORTS [2018] 8 S.C.R.

A rank of a Joint Secretary should be given such a power – There has

to be a higher ranking officer along with, preferably, a Judicial
Officer – The provisions contained in s.33(2) of the Act to the extent
it gives power to Joint Secretary is, therefore, struck down giving
liberty to the respondents to suitably enact a provision on these
lines, which would adequately protect the interest of individuals.
B
(Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.47 – Constitutionality of – s.47
provides that the cognizance would be taken only on a complaint
made by the Authority or any officer or person authorised by it –
C Petitioners feel aggrieved by this provision as it does not permit an
individual citizen whose rights are violated, to initiate the criminal
process – Held: It would be in the fitness of things if s.47 is amended
by allowing individual/victim whose right is violated, to file a
complaint and initiate the proceedings.(Majority Opinion)
D Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.57 – Constitutionality of – s.57
mentions that Aadhaar Act would not prevent use of Aadhaar number
for other purposes under the law – Held: Insofar as s.57 in the
present form is concerned, it is susceptible to misuse inasmuch as:
E It can be used for establishing the identity of an individual ‘for any
purpose’ – Therefore, the provision is read down to mean that such
a purpose has to be backed by law – Further, whenever any such
“law” is made, it would be subject to judicial scrutiny – Such
purpose is not limited pursuant to any law alone but can be done
pursuant to ‘any contract to this effect’ as well – This is clearly
F impermissible as a contractual provision is not backed by a law
and, therefore, first requirement of proportionality test is not met –
Apart from authorising the State, even ‘any body corporate or person’
is authorised to avail authentication services which can be on the
basis of purported agreement between an individual and such body
G corporate or person – Even if it is presumed that legislature did not
intend so, the impact of the said features would be to enable
commercial exploitation of an individual biometric and demographic
information by the private entities – Thus, this part of the provision
which enables body corporate and individuals also to seek
authentication, that too on the basis of a contract between the
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 9

individual and such body corporate or person, would impinge upon A

the right to privacy of such individuals – This part of the section,
thus, is declared unconstitutional. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.59 – Constitutionality of – When
the Aadhaar scheme/project under the Act has been saved from the B
challenge to its constitutionality, there is no reason to invalidate the
enrolments which were made prior to the passing of this Act as it
would lead to unnecessary burden and exercise of enrolling these
persons all over again – Instead the problem can be solved by
eliciting ‘consent’ of all those persons who were enrolled prior to
the passing of the Act – Since, enrolment is voluntary in nature, C
those who specifically refuse to give the consent, they would be
allowed to exit from Aadhaar scheme – After all, by getting Aadhaar
card, an individual so enrolled is getting a form of identity card – It
would still be open to such an individual to make use of the said
Aadhaar number or not – Those persons who need to avail any D
subsidy, benefit or service would need Aadhaar in any case. It
would not be proper to cancel their Aadhaar cards – If direction is
given to invalidate all those enrolments which were made prior to
2016 then such persons will have to undergo the rigours of getting
themselves enrolled all over again – On the other hand, those who
do not get any benefit of the nature prescribed under s.7 of the Act, E
it would always be open for them not to make use of Aadhaar card
or to make use of this card in a limited sense, namely, showing it as
a proof of their identity, without undergoing any authentication
process – Therefore, to a large extent, it does not harm this later
category as well – The validity of s.59 is upheld – As a corollary, F
Aadhaar for the period from 2009 to 2016 also stands validated.
(Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.7 – Whether the Aadhaar Act
could be passed as ‘Money Bill’ within the meaning of Art.110 of G
the Constitution – Held: The importance of Rajya Sabha (Upper
House) in a bicameral system of the Parliament – The Rajya Sabha
is an important institution signifying constitutional fedaralism – To
enact any statute, the Bill has to be passed by both the Houses,
namely, Lok Sabha as well as Rajya Sabha – It is the constitutional
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10 SUPREME COURT REPORTS [2018] 8 S.C.R.

A mandate – The only exception to this Parliamentary norm is Art.110

– Having regard to this overall scheme of bicameralism enshrined
in our Constitution, strict interpretation has to be accorded to
Art.110 – Insofar as s.7 is concerned, it makes receipt of subsidy,
benefit or service subject to establishing identity by the process of
authentication under Aadhaar or furnish proof of Aadhaar etc. –
B
The expenditure incurred in respect of such a subsidy, benefit or
service is from the Consolidated Fund of India – s.7 is the main
provision of the Act – Introduction to the Act as well as Statement of
Objects and Reasons very categorically record that the main purpose
of Aadhaar Act is to ensure that such subsidies, benefits and services
C reach those categories of persons, for whom they are actually meant
– As all these three kinds of welfare measures are sought to be
extended to the marginalised section of society, a collective reading
thereof would show that the purpose is to expand the coverage of
all kinds of aid, support, grant, advantage, relief provisions, facility,
utility or assistance which may be extended with the support of the
D
Consolidated Fund of India with the objective of targeted delivery
– Various schemes contemplated by these provisions, relate to
vulnerable and weaker section of the society – That is the main
function behind the Aadhaar Act and for this purpose, enrolment
for Aadhaar number is prescribed – Such an enrolment is of
E voluntary nature – However, it becomes compulsory for those who
seek to receive any subsidy, benefit or service under the welfare
scheme of the Government expenditure whereof is to be met from
the Consolidated Fund of India – It follows that authentication under
s.7 would be required as a condition for receipt of a subsidy, benefit
or service only when such a subsidy, benefit or service is taken
F
care of by Consolidated Fund of India – Therefore, s.7 is the core
provision of the Aadhaar Act and this provision satisfies the
conditions of Art.110 of the Constitution – Constitution of India –
Art.110. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other subsidies,
G benefits and services) Act, 2016: Data minimisation – Demographic
information is readily provided by individuals globally for disclosing
identity while relating with others and while seeking benefits whether
provided by government or by private entities, be it registration for
citizenship, elections, passports, marriage or enrolment in
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 11

educational institutions – Email IDs and phone numbers are also A

available in public domain – s.2(k) specifically provides that
Regulations cannot include race, religion, caste, tribe, ethnicity,
language, records of entitlement, income or medical history – Thus,
sensitive information specifically stand excluded – s.32(3) of the
Aadhaar Act specifically prohibits the authority from collecting,
B
storing or maintaining, either directly or indirectly any information
about the purpose of authentication – The proviso to Regn 26 of
Authentication Regulations is also to the same effect – Thus, the
principle of data minimization is largely followed. (Majority
Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies, C
benefits and services) Act, 2016: s.2(k) – Requirement under the
Aadhaar Act to give one’s demographic information – Whether
violative of fundamental right of privacy – Held: Regn.4 indicates
that information which shall be collected from individual are his
name, date of birth, gender and residential address – The additional D
information which can be collected at the option of the individual
is mobile number and e-mail address – Thus, information
contemplated under Regn 4 is nothing but information relating to
identity of the person – The identity of person from the time of taking
birth is an identity well known and generally every person describes
himself or herself to be son or daughter of such and such person – E
People who take admissions in schools/colleges/ university, who
seek employment and those who engage in various trade and
commerce are all required to provide demographic information –
Therefore, there cannot be a reasonable expectation of privacy with
regard to such information – Thus, demographic information F
required to be given in the process of enrolment does not violate
any right of privacy – Aadhaar (Enrolment and Update) Regulations,
2016 – Regn 4. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.2(g) – Requirement under the G
Aadhaar Act to give one’s biometric information – Whether violative
of fundamental right of privacy – Held: Biometric information means
photographs, fingerprints, iris scan and other such biometric
attributes of an individual as may be specified by the regulations –

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12 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Biometric information is of physical characteristics of a person – A

person has full bodily autonomy and any intrusion in the bodily
autonomy of a person can be readily accepted as breach of his
privacy – The biometric data as referred to in s.2(g) may contain
biological attributes of an individual with regard to which a person
can very well claim a reasonable expectation of privacy but whether
B
privacy rights have been breached or not needs to be examined in
the subject context under which the information was obtained. (Per
Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.2(g) – Whether obtaining
C biometric information in context of enrolment breaches the right of
privacy of individual or not – Held: The provisions of Aadhaar Act
are to be tested in light of three-fold test laid in Puttaswamy case –
The First requirement to be fulfilled is existence of law – Admittedly,
Aadhaar Act is a Parliamentary law, hence the existence of law is
D satisfied – The Aadhaar Act has been enacted with an object of
providing Aadhaar number to individuals for identifying an
individual for delivery of benefits, subsidies and services – Aadhaar
Act, which was enacted to provide for unique identity for delivery
of subsidies, benefits or services was a dire necessity, which decision
was arrived at after several reports and studies – Aadhaar Act
E was, thus, enacted for a legitimate State aim and fulfills the criteria
of a law being fair and reasonable – While examining the third
requirement, that is, proportionality of the statute, it has to be kept
in mind that the state is neither arbitrary nor of an excessive nature
beyond what is required in the interest of public – The object of the
F Aadhaar Act was to provide for unique identity for purposes of
delivery of benefits, subsidies and services to the eligible
beneficiaries and to ward of misappropriation of benefits and
subsidies, ward of deprivation of eligible beneficiaries – Biometric
information, thus, which is to be obtained for enrolment is not
disproportionate nor the provisions of Aadhaar Act requiring
G demographic and biometric information can be said to be not
passing three-fold test as laid down in Puttaswamy case – Thus,
requirement under Aadhaar Act to give one’s demographic and
biometric information does not violate fundamental right of privacy
and, therefore, is not unconstitutional – Constitution of India –
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 13

Biometric information – Right to privacy. (Per Ashok Bhushan, J.) A

Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Whether proportionality test as
envisaged in Puttaswamy case is not fulfilled in the instant case
since State did not adopt an alternative and more suitable and least
intrusive method of identification – Held: The biometric information B
which are obtained for Aadhaar enrolment are photographs,
fingerprints and iris scan, which are least intrusion in physical
autonomy of an individual – The physical process by which the
fingerprints are taken does not require information beyond the
object and purpose – Therefore, it does not readily offend those
principles of dignity and privacy, which are fundamental to each C
legislation of due process. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: ss.29, 30, 33 – Whether collection
of data of residents, its storage, retention and use violates
fundamental right of privacy – Held: The Act contains specific D
provision providing that no core biometric information collected
under the Act is shared to anyone for any reason whatsoever or use
for any purpose other than generation of Aadhaar number or
authentication under this Act – The statute creates injunction for
requesting entity to use identity information data for any purpose E
other than that specified to the individual at the time for submitting
any identification – Statute also provides for offences and penalties
for impersonation at the time of enrolment and penalty for disclosing
identity information – An overview of the entire scheme of functions
under the Aadhaar Act and Regulations made thereunder indicate
that after enrolment of resident, his informations including biometric F
information are retained in CIDR though in encrypted form – The
major function of the authority under Aadhaar Act is authentication
of identity of Aadhaar number holder as and when requests are
made by requesting agency, retention of authentication data of
requesting agencies are retained for limited period – Requesting G
entity as well as authority are required to retain authentication data
for a particular period and thereafter it will be archived for five
years and thereafter authentication data transaction shall be deleted
except such data which is required by the Court in connection with
any pending dispute – The data which is retained by the entity and
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A authority for certain period is minimal information pertaining to

identity authentication only no other personal data is retained –
Thus, provisions of Aadhaar Act and Regulations made thereunder
fulfill three fold test as laid down in Puttaswamy case, hence, the
storage and retention of data does not violate fundamental right of
privacy. (Per Ashok Bhushan, J.)
B
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Whether s.7 is unconstitutional
– Whether exclusion makes s.7 arbitrary and volative of Arts.14
and 21 – Held: s.7 is an enabling provision which empowers the
State Government to require that such individual undergo
C authentication for receipt of a subsidy, benefit or service but neither
s.7 nor orders issued by the Central Government and State
Government can be read that in the event authentication of a person
or beneficiary fails, he is not to be provided the subsidies and
benefits or services – No doubt, there has been denial to few persons
D due to failure of authentication – Functioning of scheme formulated
by the Government for delivery of benefits and subsidies to
deserving persons is a large scale scheme running into every nook
and corner of the country – When such scheme of Government is
implemented, it is not uncommon that there may be shortcomings
and some denial – There is no material on record to indicate that
E there is increase of failure to receive the benefits after the
implementation of the Act –Therefore, few cases of exclusion would
not make s.7 itself arbitrary and violative of Arts.14 and 21 –
Constitution of India – Arts.14, 21. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
F benefits and services) Act, 2016: s.29 – Constitutionality of ,
challenged on the ground that it permits sharing of identity
information which amount to breach of Right of Privacy – Held:
The provision of s.29 and the Sharing Regulations contain a
restriction and cannot be in any manner be held to violate any of
G the constitutional rights of a person – Objective of the Act is to put
restrictions on sharing information, which also is a legitimate State
aim – The provision under s.29 which permits sharing of identity
information except core biometric information in accordance with
the Act and Regulations cannot be said to be disproportionate nor
unreasonable – The provisions of s.29 is constitutional and does
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 15

not deserves to be struck down – Aadhaar (Sharing of Information) A

Regulations, 2016. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.33 – Constitutionality of –
Whether s.33 is unconstitutional since it provides for the use of the
Aadhaar data base for Police verification which violates the B
protection against self-incrimination as enshrined under Art.20(3)
of the Constitution of India – Held: Sub-section (1) of s.33 contains
an ample restriction in respect of any disclosure information which
can be done only in pursuance of an order of the court not inferior
to that of a District Judge – The restriction in disclosure of
information is reasonable and has valid justification – s.33 sub- C
section (2) contains two safeguards – Firstly, disclosure of
information is to be made in the interest of national security and
secondly, in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government, who is specially
authorised in this behalf by an order of the Central Government – D
National security, thus, is determined by a higher officer who is
specifically authorised in this behalf – The power given under s.33
to disclose information cannot be said to be disproportionate – The
basic information which are with the UIDAI are demographic and
biometric information – The use of information retained by the UIDAI
given by the order of the Court under s.33 cannot be said to be E
violating the protection as contained under Art.20(3) – Thus,
Art.20(3) is not violated by disclosure of information under s.33 –
In view of this, s.33 is constitutional – Constitution of India –
Art.20(3). (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies, F
benefits and services) Act, 2016: s.47 – Constitutionality of,
challenged on the ground that it does not allow an individual who
is victim of violation of Aadhaar Act to initiate a criminal process –
Held: Special Acts are enacted for serving special objects towards
offences under the Act – The initiation and prosecution of offences G
under the Special Act are kept by the specified authority to keep
the initiation and prosecution in the hands of the authorities under
the Special Act which acts as deterrent and prosecutions are brought
to its logical end – Objective of such provisions is to discourage
frivolous and vexatious complaints – s.47 can be invoked by the
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16 SUPREME COURT REPORTS [2018] 8 S.C.R.

A authority on its own motion or when it receives a complaint from a

victim – With regard to an offence which falls within the definition
of ‘offences’ a victim can always file complaint or lodge an F.I.R. –
s.46 clearly provides that the penalties under the Aadhaar Act shall
not interfere with other punishments – The limitation as contained
in s.47 in permitting taking cognizance of any offence punishable
B
under Aadhaar Act only on a complaint made by the authority or
any officer or person authorised by it, has legislative purpose and
objective – Thus, there is no unconstitutionality in s.47 of the
Aadhaar Act. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
C benefits and services) Act, 2016: s.57 – Constitutionality of,
challenged on the ground that broad and unlimited scope of activities
covered under s.57 and kinds of private entities permitted to use
Aadhaar is entirely disproportionate beyond the means and
objectives of the Act and without any compelling state interests –
D Held: s.57 makes use of Aadhaar on two basis – Firstly, “pursuant
to any law, for the time being in force” and secondly “any contract
to this effect” – When the legislature uses the phrase “pursuant to
any law, for the time being in force”, obviously the word law used
in s.57 is a law other than s.57 of Aadhaar Act and the Regulations
framed thereunder – When any law permits user of Aadhaar, its
E validity is to be tested on the anvil of three-fold test as laid down in
Puttaswamy case, but permitting use of Aadhaar on any contract to
this effect, is clearly in violation of Right of Privacy – A contract
entered between two parties, even if one party is a State, cannot be
said to be a law – Thus, s.57 in so far as it permits use of Aadhaar
F on “any contract to this effect” is clearly unconstitutional and is
struck down. (Per Ashok Bhushan, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.59 – Whether s.59 is void or
unconstitutional – s.59 seeks to save and continue under the Act
G what was done under the executive scheme – Legislature often creates
legal fiction to save several actions which had happened prior to
enactment – Parliamentary legislative intent of s.59 is to save all
actions taken by Central Government under the notification dtd.
28.01.2009 and notification dtd. 12.09.2015 deeming the same to
have been validly done under the Aadhaar Act by creating a legal
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 17

fiction – The intention to save all actions taken under these two A
notifications and treat them to have done under that Act is the
purpose and object of s.59 – Legislature by legislative device can
cover actions taken earlier while creating any legal fiction which
has actually been done by s.59 – Interpretation of statutes – Legal
fiction. (Per Ashok Bhushan, J.)
B
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Circular dated 23.03.2017 issued
by Ministry of Communications, Department of Telecommunications
– Constitutionality of – Held: By circular dated 23.03.2017, all
licensees were directed to re-verify all existing mobile subscribers
(prepaid and postpaid) through Aadhaar based e- KYC process – C
The circular directing the licensees to mandatorily verify existing
sim subscribers in turn resulted in mobile telephone service licensees
directing the subscribers to get their sim seeded with Aadhaar –
Compulsory seeding of Aadhaar with mobile numbers would be an
intrusion in Privacy Right of a person – Any invasion on the Privacy D
Right of a person has to be backed by law as per the three-fold test
enumerated in Puttaswamy case – Existence of a law is the foremost
condition to be fulfilled for restricting any Privacy Right – The law
as explained in Art.13(3) has to be applied for finding out as to
what is law – Art.13(3)(a) gives an inclusive definition of law in
following words:- (a) “law” includes any ordinance, order, bye- E
law, rule, regulation, notification, custom or usage having in the
territory of India the force of law – The circular at best is only an
executive instruction and cannot be held to be a law and direction
to re-verification of all existing mobile subscribers through Aadhaar
based e-KYC cannot be held to be backed by law, therefore, cannot F
be upheld – Administrative law – Executive instruction – Circular
dated 23.03.2017 issued by Ministry of Communications, Department
of Telecommunications. (Per Ashok Bhushan, J.)
Aadhaar (Enrolment and Update) Regulations, 2016: Regn 5
– Whether collecting the identity information of children between 5 G
to 18 years is unconstitutional – Held: Regn 5 provides for
information required for enrolment of children below five years of
age – For children below five, no core biometric informations are
captured and only biometric information of any one parent/guardian
is captured – For enrolment of a children between 5 and 18 years,
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18 SUPREME COURT REPORTS [2018] 8 S.C.R.

A there has to be consent of their parents or guardian because they

themselves are unable to give any valid consent for enrolment –
Thus, parental consent have to be read in Regn 4 in so far as children
of 5 to 18 years are concerned so that the provision in reference to
children between 5 to 18 years may not become unconstitutional –
Aadhaar (Targeted Delivery of Financial and other Subsidies,
B
benefits and services) Act, 2016 – s.5 – Interpretation of statutes.
(Per Ashok Bhushan, J.)
Aadhaar (Authentication) Regulations, 2016: Regn.27 – Time
Period for Data Retention – Grievance of petitioners was that the
C data is allowed to be retained for an unreasonable long period of
time – Held: Regn 27 of the Authentication Regulations requires the
UIDAI to retain the “authentication transaction data” (which
includes the meta data) for a period of 6 months and to archive the
same for a period of 5 years thereafter – Requesting entities (RE)
and Authentication Service Agencies are then allowed to retain
D the authentication logs for a period of 2 years and then archive
them for 5 years – It is required to be deleted only after 7 years
unless retained by a court – There is is no reason for archiving the
authentication transaction data for a period of five years –
Retention of this data for a period of six months is more than
E sufficient after which it needs to be deleted except when such
authentication transaction data are required to be maintained by a
Court or in connection with any pending dispute – Retention of
data beyond the period of six months is impermissible – Therefore,
Regn.27 which provides archiving a data for a period of five years
is struck down. (Majority Opinion)
F
Aadhaar Scheme: Whether Circular dtd. March 23, 2017
issued by the Department of Telecommunications mandating linking
of mobile number with Aadhaar is illegal and unconstitutional –
Held: The circular is illegal and unconstitutional as it is not backed
by any law – The same is, therefore, quashed. (Majority Opinion)
G
Constitutionalism: Aadhaar Act meets the concept of Limited
Government, Good Governance and Constitutional Trust. (Majority
Opinion)

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 19

Constitution of India: Art.14 and 21 – Whether right to food, A

shelter etc. envisaged under Art.21 shall take precedence on the
right to privacy of the beneficiaries – Held: It cannot be accepted
that while balancing the fundamental rights one right has to be
given preference – State while enlivening right to food, right to
shelter etc. envisaged under Art.21 cannot encroach upon the right
B
of privacy of beneficiaries nor former can be given precedence
over the latter. (Per Ashok Bhushan, J.)
Constitution of India: Reasonable expectation of privacy –
Held: It is well settled that breach of privacy right can be claimed
only when claimant on the facts of the particular case and
circumstances have “reasonable expectation of privacy”. C
(Per Ashok Bhushan, J.)
Constitution of India: Art.243G – Whether Aadhaar scheme
and its authentication for benefits, subsidies and services militate
against Art.243G and hence are ultra vires to the Constitution –
Held: Art.243G is an enabling provision, which enable the State D
Legislature, by law, to endow the Panchayats with such powers and
authorities as may be necessary to enable them to function as
institutions of self-government – State is fully competent to make
laws to authorise the Panchayats to take over all the matters
enumerated in Eleventh Schedule – The Aadhaar Act is an Act E
enacted by Parliament, which is referable to Entry 97 of List I – The
Aadhaar Act has been enacted to provide for efficient, transparent,
and targeted delivery of subsidies, benefits and services, the
expenditure for which is incurred from the Consolidated Fund of
India, to individuals residing in India through assigning of unique
identity numbers to such individuals and for matters connected F
therewith – The Act, thus, has been enacted to regulate the
expenditure, which is incurred from the Consolidated Fund of India
– No conflict between the Aadhaar Act and any law, which may be
enacted by State under List II is seen – Even if any conflict is
supposed, the Doctrine of Pith and Substance has to be applied to G
find out nature of two legislations – In Pith and Substance, the
Aadhaar Act cannot be said to be entrenching upon any law, which
may be made by the State under Item No.5 of List II – Aadhaar Act
is not ultra vires to Art.243G and Eleventh Schedule to the

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20 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Constitution – Aadhaar (Targeted Delivery of Financial and other

Subsidies, benefits and services) Act, 2016 – Doctrines/Principles.
(Per Ashok Bhushan, J.)
Constitution of India: Art.110 – Whether Speaker’s decision
certifying the Aadhaar Bill as Money Bill contravenes any of the
B Constitutional provisions – A condition for receipt of a subsidy,
benefit or service for which the expenditure is incurred from, or the
receipt therefrom forms part of, the Consolidated Fund of India,
has been provided by s.7 – The Preamble of the Act as well as objects
and reasons also indicate that the Act has been enacted to provide
for, as a good governance, efficient, transparent, and targeted
C delivery of subsidies, benefits and services, the expenditure for which
is incurred from the Consolidated Fund of India, to individuals
residing in India through assigning of unique identity numbers to
such individuals and for matters connected therewith or incidental
thereto – Thus, the theme of the Act or main purpose and object of
D the Act is to bring in place efficient, transparent and targeted
deliveries of subsidies, benefits and services, which expenditure is
out from the Consolidated Fund of India – Thus, the above provisions
of the Act is clearly covered by Art.110(1)(c) and (e) – Aadhaar
(Targeted Delivery of Financial and other Subsidies, benefits and
services) Act, 2016. (Per Ashok Bhushan, J.)
E
Constitution of India: Art.110 – Whether Aadhaar Act is a
Money Bill and decision of Speaker certifying it as Money Bill is
not subject to Judicial Review of Supreme Court – Held: Aadhaar
Bill has rightly been certified as the Money Bill by the Speaker,
which decision does not violate any constitutional provision, hence
F does not call for any interference in this proceeding – The decision
of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not
immuned from Judicial Review. (Per Ashok Bhushan, J.)
Doctrines/Principles: Doctrine of Proportionality – State’s
action – When challenged on the ground that it violates the right to
G privacy – Held: The action of the State is to be tested on the following
parameters: (a) the action must be sanctioned by law; (b) the
proposed action must be necessary in a democratic society for a
legitimate aim; and (c) the extent of such interference must be
proportionate to the need for such interference – Constitution of
H India – Right to privacy. (Majority Opinion)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 21

Income Tax Act, 1961: s.139AA – Constitutionality of – A

Whether s.139AA is violative of right to privacy and is, therefore,
unconstitutional – Held: In Puttaswamy, the court laid down the
triple test to be satisfied for judging the permissible limits for
invasion of privacy while testing the validity of any legislation –
These are: (a) existence of a law; (b) A legitimate State interest; and
B
(c) Such law should pass the “test of proportionality” – There is no
dispute that the first requirement stood satisfied as s.139AA is a
statutory provision and, there is a backing of law – Insofar as
requirement of ‘legitimate State interest’ is concerned, s.139AA is
enacted to link PAN number with Aadhaar number which is issued
under the Act for the purpose of eliminating duplicate PANs from C
the system with the help of robust technology solution – Therefore,
those who have PAN number and have already provided the
information required to get PAN number cannot claim to have any
legitimate expectation of withholding any data required for Aadhaar
under the ground of privacy – Also, there was justifiable reason
D
with the State for collection and storage of data in the form of
Aadhaar and linking it with PAN insofar as s.139AA of the 1961
Act is concerned – The provisions of s.139AA meet the triple test of
right to privacy, contained in Puttaswamy. (Majority Opinion)
Income Tax Act, 1961: s.139AA – Whether s.139-AA of the
IT Act, 1961 is unconstitutional in view of the Privacy judgment in E
Puttaswamy case – Held: s.139-A provide for Permanent Account
Number (PAN) and the provision also provided that statutory
mandatory provisions as to when “every person” shall quote such
number (PAN number) for various purposes as enumerated in s.139A
– Introduction of s.139-AA is an extension and implication of s.139A F
– The introduction of s.139-AA was for the purpose of eliminating
duplicate PANs from the system with the help of a robust technology
solution – s.139-AA seeks to remove bogus PAN cards by linking
with Aadhaar, expose shell companies and thereby curb the menace
of black money, money laundering and tax evasion – Linking of
PAN with Aadhaar will at least ensure that duplicate and fake PAN G
cards which are used for the purpose of tax evasion will be eliminated
and is one of the many fiscal measures to eliminate black money
from the system – s.139-AA also cannot be said to be disproportionate
– The section has been enacted to achieve the legitimate State aim –
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22 SUPREME COURT REPORTS [2018] 8 S.C.R.

A s.139-AA is a law framed by Parliament, which require linking of

the Aadhaar with PAN – s.139-AA is a required first step to weed
out fake PANs for individuals; it is perfectly acceptable for the
legislature to weed out fake PANs for other tax-paying entities at a
later stage – Inclusion of Aadhaar into PAN eliminates the inequality
between honest tax payers and non-compliant, dishonest ones who
B
get away without paying taxes – Inclusion of Aadhaar into PAN
bolsters equality and is consistent with Art.14 – In result, s.139-AA
is fully compliant of three-fold test as laid down in Puttaswamy’s
case – s.139-AA, thus does not breach fundamental Right of Privacy
of an individual and cannot be struck down.
C (Per Ashok Bhushan, J.)
Interim Orders: As per the petitioners, the Central
Government and the State Government have issued certain
notifications requiring Aadhaar authentication for benefits, subsidies
and schemes mandatory and, therefore, the respondents have
D violated the orders of this court – Held: The said interim orders
were passed by the court when the Aadhaar Act had not come into
force – After the enactment, s.7 had altered the position statutorily
– The notifications and circulars are issued under this provision –
Therefore, it cannot be held that these circulars are issued in
contravention of the orders passed by this court – Aadhaar (Targeted
E Delivery of Financial and other subsidies, benefits and services)
Act, 2016. (Majority Opinion)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: The entire Aadhaar programme,
since 2009, suffers from constitutional infirmities and violations of
F fundamental rights – The enactment of the Aadhaar Act does not
save the Aadhaar project – The Aadhaar Act, the Rules and
Regulations framed under it, and the framework prior to the
enactment of the Act are held unconstitutional.
(Per Dr. D Y Chandrachud, J.)
G Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Aadhaar Act challenged on
the ground that it could not have been passed as a Money Bill –
Held: To be certified a Money Bill, a Bill must contain “only
provisions” dealing with every or any one of the matters set out in
H sub-clauses (a) to (g) of Art.110(1) – A Bill, which has both
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 23

provisions which fall within sub-clauses (a) to (g) of Art.110(1) and A

provisions which fall outside their scope, will not qualify to be a
Money Bill – Thus, when a Bill which has been passed as a Money
Bill has certain provisions which fall beyond the scope of sub-clauses
(a) to (g) of Art.110(1), these provisions cannot be severed – The
Aadhaar Act creates a statutory framework for obtaining a unique
B
identity number, which is capable of being used for “any” purpose,
among which availing benefits, subsidies and services, for which
expenses are incurred from the Consolidated Fund of India, is just
one purpose provided under s.7 – Clause (e) of Art.110(1) requires
that a Money Bill must deal with the declaring of any expenditure
to be expenditure charged on the Consolidated Fund of India (or C
increasing the amount of the expenditure) – s.7 fails to fulfil this
requirement – s.7 does not declare the expenditure incurred to be a
charge on the Consolidated Fund – It only provides that in the case
of such services, benefits or subsidies, Aadhaar can be made
mandatory to avail them – Moreover, provisions other than s.7 of
D
the Act deal with several aspects relating to the Aadhaar numbers:
enrolment on the basis of demographic and biometric information,
generation of Aadhaar numbers, obtaining the consent of
individuals before collecting their individual information, creation
of a statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure E
of information in certain circumstances, creation of offences and
penalties for disclosure or loss of information, and the use of the
Aadhaar number for “any purpose” – All these provisions of the
Aadhaar Act do not lie within the scope of sub-clauses (a) to (g) of
Art.110(1) – Thus, the Aadhaar Act is declared unconstitutional for
F
failing to meet the necessary requirements to have been certified as
a Money Bill under Art.110(1) – Constitution of India – Art.110.
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Legitimate State aim, insufficient
to hold validity of law – Held: The architecture of the Aadhaar Act G
seeks to create a unique identity for residents on the basis of their
demographic and biometric information – The Act sets up a process
of identification by which the unique identity assigned to each
individual is verified with the demographic and biometric
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24 SUPREME COURT REPORTS [2018] 8 S.C.R.

A information pertaining to that individual which is stored in a

centralised repository of data – Identification of beneficiaries is
integral and essential to the fulfilment of social welfare schemes
and programmes, which are a part of the State’s attempts to ensure
that its citizens have access to basic human facilities – The
contention of the Union of India that there is a legitimate state aim
B
in maintaining a system of identification to ensure that the welfare
benefits provided by the State reach the beneficiaries who are
entitled, without diversion, is accepted – The decision in Puttaswamy
recognised that revenue constitutes a legitimate state aim in the three-
pronged test of proportionality – However, the existence of a
C legitimate aim is insufficient to uphold the validity of the law, which
must also meet the other parameters of proportionality spelt out in
Puttaswamy. (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Collection of biometric data and
D its retention – The Aadhaar programme involves application of
biometric technology, which uses an individual’s biometric data as
the basis of authentication or identification and is therefore
intimately connected to the individual – While citizens have privacy
interests in personal or private information collected about them,
the unique nature of biometric data distinguishes it from other
E personal data, compounding concerns regarding privacy protections
safeguarding biometric information – Once a biometric system is
compromised, it is compromised forever – Therefore, it is imperative
that concerns about protecting privacy must be addressed while
developing a biometric system – Adequate norms must be laid down
F for each step from the collection to retention of biometric data – At
the time of collection, individuals must be informed about the
collection procedure, the intended purpose of the collection, the
reason why the particular data set is requested and who will have
access to their data – Additionally, the retention period must be
justified and individuals must be given the right to access, correct
G and delete their data at any point in time, a procedure familiar to
an opt-out option.(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: The Aadhaar Act and Regulations
are bereft of the procedure through which an individual can access
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 25

information related to his or her authentication record – The A

Aadhaar Act clearly has no defined options that should be made
available to the Aadhaar number holders in case they do not wish
to submit identity information during authentication, nor do the
regulations specify the procedure to be followed in case the Aadhaar
number holder does not provide consent for authentication – To
B
enable the government to initiate steps for ensuring conformity with
this judgment, it is directed under Art.142 that the existing data
which has been collected shall not be destroyed for a period of one
year – During this period, the data shall not be used for any purpose
whatsoever – At the end of one year, if no fresh legislation has been
enacted by the Union government in conformity with the principles C
which have been enunciated in this judgment, the data shall be
destroyed – Constitution of India – Art.142.
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: ss.2(g), (j), (k) and (t), 29(1) and D
(2) – Constitutionality of – Invasion in privacy of an individual –
ss.29(1) and (2) of the Act create a distinction between two classes
of information (core biometric information and identity information),
which are integral to individual identity and require equal protection
– s.29(4) suffers from overbreadth as it gives wide discretionary
power to UIDAI to publish, display or post core biometric E
information of an individual for purposes specified by the
regulations – ss.2(g), (j), (k) and (t) suffer from overbreadth, as
these can lead to an invasive collection of biological attributes –
These provisions give discretionary power to UIDAI to define the
scope of biometric and demographic information and empower it F
to expand on the nature of information already collected at the time
of enrollment, to the extent of also collecting any “such other
biological attributes” that it may deem fit.
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies, G
benefits and services) Act, 2016: s.28(5) – Violation of informational
privacy – The proviso to s.28(5) of the Aadhaar Act, which disallows
an individual access to the biometric information that forms the
core of his or her unique ID, is violative of a fundamental principle
that ownership of an individual’s data must at all times vest with the
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26 SUPREME COURT REPORTS [2018] 8 S.C.R.

A individual – UIDAI is also provided wide powers in relation to

removing the biometric locking of residents – The analysis of the
measures taken by the Government of India prior to the enactment
of the Aadhaar Act as well as a detailed analysis of the provisions
under the Aadhaar Act, 2016 and supporting Regulations made
under it clearly show that the Aadhaar programme violates essential
B
norms pertaining to informational privacy, self-determination and
data protection. (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Dignity of an individual – Biometric
technology which is the core of the Aadhaar programme is
C probabilistic in nature, leading to authentication failures – The
Aadhaar project has failed to account for and remedy the flaws in
its framework and design which has led to serious instances of
exclusion of eligible beneficiaries as demonstrated by the official
figures from Government records including the Economic Survey of
D India 2016-17 and research studies – Dignity and the rights of
individuals cannot be made to depend on algorithms or probabilities
– Constitutional guarantees cannot be subject to the vicissitudes of
technology – Denial of benefits arising out of any social security
scheme which promotes socio-economic rights of citizens is violative
of human dignity and impermissible under our constitutional scheme.
E (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Test of necessity and
proportionality – Violation of data minimisation principles – Under
the Aadhaar project, requesting entities can hold the identity
F information of individuals, for a temporary period – It was admitted
by UIDAI that AUAs may store additional information according to
their requirement to secure their system – ASAs have also been
permitted to store logs of authentication transactions for a specific
time period – It has been admitted by UIDAI that it gets the AUA
G code, ASA code, unique device code and the registered device code
used for authentication, and that UIDAI would know from which
device the authentication took place and through which AUA/ASA
– Under the Regulations, UIDAI further stores the authentication
transaction data – This is in violation of widely recognized data
minimisation principles which mandate that data collectors and
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 27

processors delete personal data records when the purpose for which A
it has been collected is fulfilled – Moreover, using the meta-data
related to the transaction, the location of the authentication can
easily be traced using the IP address, which impacts upon the
privacy of the individual. (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies, B
benefits and services) Act, 2016: Risk of potential surveillance –
When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this
information to re-construct a profile of an individual’s life – This is
contrary to the right to privacy and poses severe threats due to
potential surveillance – From the verification log, it is possible to C
locate the places of transactions by an individual in the past five
years – It is also possible through the Aadhaar database to track
the current location of an individual, even without the verification
log – The architecture of Aadhaar poses a risk of potential
surveillance activities through the Aadhaar database – Any leakage D
in the verification log poses an additional risk of an individual’s
biometric data being vulnerable to unauthorised exploitation by
third parties – The biometric database in the CIDR is accessible to
third-party vendors providing biometric search and de-duplication
algorithms, since neither the Central Government nor UIDAI have
the source code for the de-duplication technology which is at the E
heart of the programme – The source code belongs to a foreign
corporation – UIDAI is merely a licensee – Prior to the enactment
of the Aadhaar Act, without the consent of individual citizens, UIDAI
contracted with L-1 Identity Solutions (the foreign entity which
provided the source code for biometric storage) to provide to it any F
personal information related to any resident of India – This is
contrary to the basic requirement that an individual has the right to
protect herself by maintaining control over personal information –
The protection of the data of 1.2 billion citizens is a question of
national security and cannot be subjected to the mere terms and
conditions of a normal contract. (Per Dr. D Y Chandrachud, J.) G

Aadhaar (Targeted Delivery of Financial and other Subsidies,

benefits and services) Act, 2016: Enrolment by private parties –
Before the enactment of the Aadhaar Act, MOUs between UIDI and
Registrars were not contracts within the purview of Art.299 of the
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28 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Constitution, and therefore, do not cover the acts done by the private
entities engaged by the Registrars for enrolment – Since there is no
privity of contract between UIDAI and the Enrolling agencies, the
activities of the private parties engaged in the process of enrolment
before the enactment of the Aadhaar Act have no statutory or legal
backing – Constitution of India – Art.299.
B
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Aadhaar Act silent on the liability
of UIDAI – Under the Aadhaar architecture, UIDAI is the sole
authority which carries out all administrative, adjudicatory,
C investigative, and monitoring functions of the project – While the
Act confers these functions on UIDAI, it does not place any
institutional accountability upon UIDAI to protect the database of
citizens’ personal information – UIDAI also takes no institutional
responsibility for verifying whether the data entered and stored in
D the CIDR is correct and authentic – The task has been delegated to
the enrolment agency or the Registrar – Verification of data being
entered in the CIDR is a highly sensitive task for which the UIDAI
ought to have taken responsibility – The Aadhaar Act is also silent
on the liability of UIDAI and its personnel in case of their non-
compliance of the provisions of the Act or the regulations.
E (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.47 – Right of individual, victim
of violation of Aadhaar Act to initiate a criminal process – Held:
s.47 of the Act violates citizens’ right to seek remedies – Under
F s.47(1), a court can take cognizance of an offence punishable under
the Act only on a complaint made by UIDAI or any officer or person
authorised by it – s.47 is arbitrary as it fails to provide a mechanism
to individuals to seek efficacious remedies for violation of their
right to privacy – Further, s.23(2)(s) of the Act requires UIDAI to
G establish a grievance redressal mechanism – Making the authority
which is administering a project, also responsible for providing a
grievance redressal mechanism for grievances arising from the
project severely compromises the independence of the grievance
redressal body. (Per Dr. D Y Chandrachud, J.)

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 29

Aadhaar (Targeted Delivery of Financial and other Subsidies, A

benefits and services) Act, 2016: s.59 – Validation of actions taken
under the 2009 notification – Held: s.59 of the Aadhaar Act seeks
to retrospectively validate the actions of the Central Government
done prior to the Aadhaar Act pursuant to Notifications dated 28
January 2009. and 12 September 2015 – s.59 does not validate
B
actions of the state governments or of private entities – Moreover,
the notification of 2009 did not authorise the collection of biometric
data – Consequently, the validation of actions taken under the 2009
notification by s.59 does not save the collection of biometric data
prior to the enforcement of the Act – While Parliament possesses
the competence to enact a validating law, it must cure the cause of C
infirmity or invalidity – s.59 fails to cure the cause of invalidity
prior to the enactment of the Aadhaar Act – Absence of a legislative
framework for the Aadhaar project between 2009 and 2016 left
the biometric data of millions of Indian citizens bereft of the kind of
protection which must be provided to comprehensively protect and
D
enforce the right to privacy – s.59, therefore, fails to meet the test of
a validating law since the complete absence of a regulatory
framework and safeguards cannot be cured merely by validating
what was done under the notifications of 2009 and 2016.
(Per Dr. D Y Chandrachud, J.)
E
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Absence of an independent
regulatory and monitoring framework to provide safeguards for
data protection – Held: Absence of an independent regulatory
framework renders the Act largely ineffective in dealing with data
violations – The architecture of Aadhaar ought to have, but has F
failed to embody within the law the establishment of an independent
monitoring authority (with a hierarchy of regulators), along with
the broad principles for data protection – This compromise in the
independence of the grievance redressal body impacts upon the
possibility and quality of justice being delivered to citizens – In the
G
absence of an independent regulatory and monitoring framework
which provides robust safeguards for data protection, the Aadhaar
Act cannot pass muster against a challenge on the ground of
reasonableness under Art.14. (Per Dr. D Y Chandrachud, J.)

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30 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Aadhaar (Targeted Delivery of Financial and other Subsidies,

benefits and services) Act, 2016: s.57 – Allowing private entities to
use Aadhaar numbers – Constitutionality of – Held: This will lead
to commercial exploitation of the personal data of individuals
without consent and could also lead to individual profiling –
Profiling could be used to predict the emergence of future choices
B
and preferences of individuals – These preferences could also be
used to influence the decision making of the electorate in choosing
candidates for electoral offices – This is contrary to privacy
protection norms – Data cannot be used for any purpose other
than those that have been approved – While developing an
C identification system of the magnitude of Aadhaar, security concerns
relating to the data of 1.2 billion citizens ought to be addressed –
These issues have not been dealt with by the Aadhaar Act – By
failing to protect the constitutional rights of citizens, s.57 violates
Arts.14 and 21 – s.57 is susceptible to be applied to permit
commercial exploitation of the data of individuals or to affect their
D
behavioural patterns – s.57 cannot pass constitutional muster –
Since it is manifestly arbitrary, it suffers from overbreadth and
violates Art.14 – Constitution of India – Arts.14, 21.
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
E
benefits and services) Act, 2016: s.7 – Constitutionality of – Held:
s.7 suffers from overbreadth since the broad definitions of the
expressions ‘services and ‘benefits’ enable the government to
regulate almost every facet of its engagement with citizens under
the Aadhaar platform – If the requirement of Aadhaar is made
F mandatory for every benefit or service which the government
provides, it is impossible to live in contemporary India without
Aadhaar – The inclusion of services and benefits in s.7 is a pre-
cursor to the kind of function creep which is inconsistent with the
right to informational self-determination – s.7 is, therefore, arbitrary
and violative of Art.14 in relation to the inclusion of services and
G
benefits as defined – Constitution of India – Art.14.
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – The legitimate aim of the
State can be fulfilled by adopting less intrusive measures as opposed
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 31

to the mandatory enforcement of the Aadhaar scheme as the sole A

repository of identification – The State has failed to demonstrate
that a less intrusive measure other than biometric authentication
would not subserve its purposes. (Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Requirement of e-KYC B
authentication of mobile subscribers – Constitutionality of – Held:
The conflation of biometric information with SIM cards poses grave
threats to individual privacy, liberty and autonomy – Having due
regard to the test of proportionality which has been propounded in
Puttaswamy, the decision to link Aadhaar numbers with mobile SIM
cards is neither valid nor constitutional – Mere existence of a C
legitimate state aim will not justify the disproportionate means which
have been adopted in the instant case – The biometric information
and Aadhaar details collected by Telecom Service Providers shall
be deleted forthwith and no use of the said information or details
shall be made by TSPs or any agency or person or their behalf. D
(Per Dr. D Y Chandrachud, J.)
Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Interim orders – Defiance of
judicial orders (both interim and final) be it by the government or
by citizens negates the basis of the rule of law – Both propriety and E
constitutional duty required the Union government to move this Court
after the enactment of the Aadhaar Act for variation of this Court’s
interim orders – Institutions of governance are bound by a sense of
constitutional morality which requires them to abide by judicial
orders – Interlocutory orders. (Per Dr. D Y Chandrachud, J.)
F
Constitution of India: Art.110 – Decision of Speaker under
Art.110 – Whether immune from judicial review – Held: The
decisions of the Speaker is subject to judicial review, if it suffers
from illegality or from a violation of constitutional provisions – The
power of the Speaker cannot be exercised arbitrarily in violation
of constitutional norms and values, as it damages the essence of G
federal bicameralism, which is a part of the basic structure of the
Constitution – Judicial review of the Speaker’s decision, on whether
a Bill is a Money Bill is necessary to protect the basic structure of
the Constitution – A constitutional trust has been vested in the office
of the Speaker of the Lok Sabha – By declaring a Bill to be a Money H
32 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Bill, the Speaker limits the role of the Rajya Sabha – This power
cannot be unbridled or bereft of judicial scrutiny – If the power of
the Speaker is exercised contrary to constitutional norms, it will not
only limit the role of the Rajya Sabha, but denude the efficacy of a
legislative body created by the Constitution – Such an outcome
would be inconsistent with the scheme of the Indian Constitution –
B
Judicial review is necessary to ensure that the federal features of
the Constitution are not transgressed – Administrative law – Judicial
review. (Per Dr. D Y Chandrachud, J.)
Constitution of India: Art.110 – History of Art.110(3),
comparative constitutional practices and other constitutional
C provisions using the phrase ‘shall be final’ – Examined.
(Per Dr. D Y Chandrachud, J.)
Constitution of India: Role of Rajya Sabha – The Rajya Sabha
represents the constituent states of India – It legitimately holds itself
as the guardian of the interest of the component states in a federal
D polity – It endeavours to remain concerned and sensitive to the
aspirations of the states, thereby strengthening the country’s “federal
fabric” and “promotes national integration” – The Rajya Sabha is
a permanent body as it is not subject to dissolution – Being an
indirectly elected House, it has no role in the making or unmaking
E of the Government and, therefore, it is comparatively “free from
compulsions of competitive party politics” – As a revising chamber,
the Constitution makers envisioned that it will protect the values of
the Constitution, even if it is against the popular will – The Rajya
Sabha is a symbol against majoritarianism – Participatory
governance is the essence of democracy – It ensures responsiveness
F and transparency – An analysis of the Bills revised by the Rajya
Sabha reveals that in a number of cases, the changes recommended
by the Rajya Sabha in the Bills passed by the Lok Sabha were
eventually carried out. (Per Dr. D Y Chandrachud, J.)
Constitutionalism: Constitutional identity – Aadhaar scheme
G – Held: Identity is necessarily a plural concept – The Constitution
also recognizes a multitude of identities through the plethora of
rights that it safeguards – The technology deployed in the Aadhaar
scheme reduces different constitutional identities into a single identity
of a 12-digit number and infringes the right of an individual to
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 33

identify herself/himself through a chosen means – Aadhaar is about A

identification and is an instrument which facilitates a proof of identity
– It must not be allowed to obliterate constitutional identity. (Per
Dr. D Y Chandrachud, J.)
Income Tax Act, 1961: s.139AA – Constitutionality of – Held:
The seeding of Aadhaar with PAN cards depends on the B
constitutional validity of the Aadhaar legislation itself – s.139AA is
based on the premise that the Aadhaar Act itself is a valid legislation
– Since the Aadhaar Act itself is now held to be unconstitutional
for having been enacted as a Money Bill and on the touchstone of
proportionality, the seeding of Aadhaar to PAN under Art.139AA
does not stand independently – Aadhaar (Targeted Delivery of C
Financial and other Subsidies, benefits and services) Act, 2016.
(Per Dr. D Y Chandrachud, J.)
Interpretation of Statutes: Deeming fiction – While a
legislature has the power to legislate retrospectively, it cannot
retrospectively create a deeming fiction about the existence of D
safeguards in the past to justify an encroachment on a fundamental
right. (Per Dr. D Y Chandrachud, J.)
Prevention of Money Laundering (Maintenance of Records)
Rules, 2005: r.9 – Constitutionality of – Whether r.9 and the
notifications issued thereunder which mandates linking of Aadhaar E
with bank accounts is unconstitutional – Held: The provision in the
present form does not meet the test of proportionality and, therefore,
violates the right to privacy of a person which extends to banking
details – This linking is made compulsory not only for opening a
new bank account but even for existing bank accounts with a F
stipulation that if the same is not done then the account would be
deactivated, with the result that the holder of the account would not
be entitled to operate the bank account till the time seeding of the
bank account with Aadhaar is done – This amounts to depriving a
person of his property – The test of proportionality requires that a
limitation of the fundamental rights must satisfy the following to be G
proportionate: (i) it is designated for a proper purpose; (ii) measures
are undertaken to effectuate the limitation are rationally connected
to the fulfilment of the purpose; (iii) there are no alternative less
invasive measures; and (iv) there is a proper relation between the
importance of achieving the aim and the importance of limiting the H
34 SUPREME COURT REPORTS [2018] 8 S.C.R.

A right – This move of mandatory linking of Aadhaar with bank

account does not satisfy the test of proportionality – The Rules are
held to be disproportionate. (Majority Opinion)
Prevention of Money Laundering (Maintenance of Records)
Rules, 2005: r.9 – Whether r.9 as amended by the Prevention of
B Money-Laundering (Second Amendment) Rules, 2017 is
unconstitutional – Held:r.9 as amended by PMLA (Second
Amendment) Rules, 2017 is not unconstitutional and does not violate
Arts.14, 19(1)(g), 21 & 300A of the Constitution and ss.3, 7 & 51
of the Aadhaar Act – Further r.9 as amended is not ultra vires to
PMLA Act, 2002 – Amended Rules help all concerned to detect
C fictitious, ghost and benami accounts – The object of the PMLA
and the definition of beneficial owner Act seeks to traverse behind
the corporate veil of shell companies and spurious Directors in
order to ascertain the real natural persons controlling the accounts
in the reporting entities – The statutory rules cast an obligation on
D all account holders to get their identity verified by Aadhaar
mechanism and those who are already holding account in the
reporting entity they are required to submit the Aadhaar number or
proof of their applied Aadhaar identity – When a statute puts
obligation on account holder to get identity verification in a
particular manner a person chose not to obtain Aadhaar number
E cannot complain his disentitlement of operating his account – The
object of inserting the Rule is to make it possible to weed out fake
and duplicate PANs and false bank accounts – The Second
Amendment Rules are step in direction to cure the menace of fake
bank accounts held by the shell companies in the name of dummy
F directors, money laundering, terror financing etc. – Aadhaar number
is required to be given at the time of opening of the account based
relationship and not for every transaction conducted by an account
holder of the bank – Those who have already existing accounts
are required to submit only once their Aadhaar number for
verification – The requirement of Aadhaar number being given only
G for once is not any cumbersome or undue burden on an account
holder and is a proportionate measure – For non-submission of
Aadhaar number and PAN only consequence which is contemplated
by sub-rule (c) is that account shall cease to be operational – The
account will remain to belong to the account holder and the amount
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 35

in the account is only his amount and there is no deprivation of the A

property of account holder – Further, account is ceased operational
only till the time Aadhaar number and PAN is submitted – The
consequences provided is only to effectuate the purpose of the Act
and the Rules i.e. account be verified by Aadhaar mechanism –
Thus, r.9(17)(c) does not violate right under Art.300A – Aadhaar
B
number providing for verification of an account also cannot be
held to be violating right under Art.21 – The reporting entity i.e.
banks and financial institutions under various statutes are required
to provide information of a bank account to different authorities
including income tax authority, account verification by Aadhaar is
not for the purpose of keeping a track on the transaction done by C
an individual – Aadhaar number has to be given only once for
opening of the account or for verification of the account and
transactions are not to be made on the basis of Aadhaar verification
each time – Rules cannot be held in any manner violating ss.3, 7
and 51 – The rules provide for use of Aadhaar for verification of
D
bank account by law as contemplated by s.57 of the Aadhaar Act –
Prevention of Money-Laundering (Second Amendment) Rules, 2017
– Constitution of India – Arts.14, 19(1)(g), 21 and 300A – Aadhaar
(Targeted Delivery of Financial and other Subsidies, benefits and
services) Act, 2016. (Per Ashok Bhushan, J.)
Prevention of Money Laundering (Maintenance of Records) E
Rules, 2005: r.9 (as amended by PMLA (Second Amendment) Rules,
2017 ) – Constitutionality of – Held: The 2017 amendments to the
PMLA Rules fail to satisfy the test of proportionality – The imposition
of a uniform requirement of linking Aadhaar numbers with all
account based relationships proceeds on the presumption that all F
existing account holders as well as every individual who seeks to
open an account in future is a potential money-launderer – No
distinction has been made in the degree of imposition based on the
client, the nature of the business relationship, the nature and value
of the transactions or the actual possibility of terrorism and money-
laundering – The rules also fail to make a distinction between G
opening an account and operating an account – Moreover, the
consequences of the failure to submit an Aadhaar number are
draconian – In their present form, the rules are clearly
disproportionate and excessive. (Per Dr. D Y Chandrachud, J.)
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36 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Disposing of the matters, the Court

HELD:
Per A.K. Sikri, J. (for CJI, himself and A.M. Khanwilkar,
J.) (Majority Opinion)
B 1.1 The whole architecture of Aadhaar is devised to give
unique identity to the citizens of this country. No doubt, a person
can have various documents on the basis of which that individual
can establish her identify. It may be in the form of a passport,
Permanent Account Number (PAN) card, ration card and so on.
For the purpose of enrolment itself number of documents are
C prescribed which an individual can produce on the basis of which
Aadhaar card can be issued. Thus, such documents, in a way, are
also proof of identity. However, there is a fundamental difference
between the Aadhaar card as a means of identity and other
documents through which identity can be established. Enrolment
D for Aadhaar card also requires giving of demographic information
as well as biometric information which is in the form of iris and
fingerprints. This process eliminates any chance of duplication.
An individual can manipulate the system by having more than
one or even number of PAN cards, passports, ration cards etc.
When it comes to obtaining Aadhaar card, there is no possibility
E of obtaining duplicate card. Once the biometric information is
stored and on that basis Aadhaar card is issued, it remains in the
system with the Authority. Wherever there would be a second
attempt for enrolling for Aadhaar and for this purpose same person
gives his biometric information, it would immediately get matched
F with the same biometric information already in the system and
the second request would stand rejected. It is for this reason the
Aadhaar card is known as Unique Identification (UID). Such an
identity is unparalleled. In addition to enabling any resident to
obtain such unique identification proof, it is also to empower
marginalised section of the society, particularly those who are
G illiterate and living in abject poverty or without any shelter etc.
It gives identity to such persons also. Moreover, with the aid of
Aadhaar card, they can claim various privileges and benefits etc.
which are actually meant for these people. [Paras 55, 56][188-C-
G; 189-A-B]
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 37

Basheshar Nath v. Commissioner of Income Tax, Delhi A

and Rajasthan & Anr. [1959] Supp 1 SCR 528; Romesh
Thappar v. State of Madras [1950] SCR 594; State of
Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.
(1977) 4 SCC 471 : [1978] 1 SCR 641; Dattatraya
Govind Mahajan v. State of Maharashtra (1977) 2 SCC
B
548 : [1977] 2 SCR 790; National Human Rights
Commission v. State of Arunachal Pradesh (1996) 1 SCC
742 : [1996] 1 SCR 278 – relied on.
Ex parte Jackson 96 US 727 (1878); Lovell v. City of
Griffin 303 US 444 (1938); Bidie v. General Accident,
Fire and Life Assurance Corporation (1948) 2 All ER C
995, 998; Holmes in Towne v. Eisner Towne v. Eisner
245 US 418; James v. Commonwealth of Australia
(1936) AC 578 – referred to.
Thiruvengadam, The Use of Foreign Law in
Constitutional Cases in India and Singapore (2010) – D
referred to.
1.2 When the judiciary is assigned the role of upholding
the rule of law, the first function of the judiciary is to protect the
democracy as well as the Constitution. At the same time, second
role of the Court, which is equally important, is to bridge the gap E
between the law and the society. In the process of undertaking
this role, a third role, which is of equal significance also springs
up. Judiciary is also to ensure that social and economic justice is
meted out to the deserving lot by affirmative action of the State.
[Para 72][205-C-D] F
Binoy Viswam v. Union of India & Ors. (2017) 7 SCC 59 :
[2017] 7 SCR 1 – relied on.
State of M.P. v. Rakesh Kohli (2012) 6 SCC 312 : [2012] 6
SCR 661; Ashoka Kumar Thakur v. Union of India (2008) 6
SCC 1 : [2008] 4 SCR 1; A.P. & Ors. v. MCDOWELL & Co. G
& Ors. (1996) 3 SCC 709 : [1996] 3 SCR 721; Rajbala &
Ors. v. State of Haryana & Ors. (2016) 2 SCC 445 : [2015]
12 SCR 1106 – referred to.

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38 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 2. Scope of Judicial review: Judicial review means the

Supremacy of law. It is the power of the court to review the actions
of the Legislature, the Executive and the Judiciary itself and to
scrutinize the validity of any law or action. It has emerged as one
of the most effective instruments of protecting and preserving
the cherished freedoms in a constitutional democracy and
B
upholding principles such as separation of powers and rule of
law. The Judiciary, through judicial review, prevents the decisions
of other branches from impinging on the constitutional values.
The fundamental nature of the Constitution is that of a limiting
document, it curtails the powers of majoritarianism from hijacking
C the State. The power of review is the shield which is placed in the
hands of the most judiciaries of constitutional democracies to
enable the protection of the supreme document. [Para 74][205-
C-D]
Shayara Bano v Union of India (2017) 9 SCC 1 : [2017]
D 7 SCR 797; Dr. K.R. Lakshmanan v. State of T.N. &
Anr. (1996) 2 SCC 226 : [1996] 1 SCR 395; Maneka
Gandhi v. Union of India & Anr. (1978) 1 SCC 248 :
[1978] 2 SCR 621 – relied on.
3. Contours of Right to Privacy:
E 3.1 It stands established, with conclusive determination of
the nine Judge Bench judgment of this Court in K.S. Puttaswamy
that right to privacy is a fundamental right. One of the feature of
this judgment is that right to privacy cannot be impinged without
a just, fair and reasonable law. It has to fulfill the test of
F proportionality i.e. (i) existence of a law; (ii) must serve a
legitimate State aim; and (iii) proportionality. The Court has held
that privacy has always been a natural right which gives an
individual freedom to exercise control over his or her personality.
The judgment further affirms three aspects of the fundamental
right to privacy, namely: (i) intrusion with an individual’s physical
G body; (ii) informational privacy; and (iii) privacy of choice. Further,
privacy is considered as a subset of personal liberty. Another
significant jurisprudential development of this judgment is that
right to privacy as a fundamental right is not limited to Article 21.
On the contrary, privacy resonates through the entirety of Part III
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 39

of the Constitution which pertains to fundamental rights and, in A

particular, Articles 14, 19 and 21. [Paras 81, 82, 84][216-F; 254-
F-G; 255-F]
3.2 The judgment clarifies that the ‘classification’ test
adopted earlier has to be expanded and instead the law/action is
to be tested on the ground of ‘manifest arbitrariness’. When it B
comes to examining the ‘restrictions’ as per the provisions of
Article 19 of the Constitution, the judgment proceeds to clarify
that a law which impacts dignity and liberty under Article 21, as
well as having chilling effects on free speech which is protected
by Article 19(1)(a), must satisfy the standards of judicial review
under both provisions. Therefore, such restriction must satisfy C
the test of judicial review under: (i) one of the eight grounds
mentioned under Article 19(2); and (ii) the restriction should be
reasonable. This Court has applied multiple standards to
determine reasonableness, including proximity, arbitrariness, and
proportionality. Further, the reasonable restrictions must be in D
the interests of: (i) the sovereignty and integrity of India, (ii) the
security of the State, (iii) friendly relations with foreign States,
(iv) public order, (v) decency or morality or (vi) in relation to
contempt of court, (vii) defamation or (viii) incitement to an
offence. The judgment further laid down that in the context of
Article 21, the test to be applied while examining a particular E
provision is the ‘just, fair and reasonable test’ thereby bringing
notion of proportionality. The reasonable expectation of privacy
may vary from the intimate zone to the private zone and from the
private zone to the public arena. [Paras 87, 88 and 90][257-H;
258-A, E] F
K.S. Puttaswamy & Anr. v. Union of India & Ors. [2017]
10 SCR 569 : (2017) 10 SCC 1 – followed.
3.3 Principles of Human Dignity: Privacy is the
constitutional core of human dignity. In the context of Aadhaar
scheme how the concept of human dignity is to be applied assumes G
significance. The right of choice and right of self determination
were accepted as facets of human dignity. The basic principle of
dignity and freedom of the individual is an attribute of natural law
which becomes the right of all individuals in a constitutional
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40 SUPREME COURT REPORTS [2018] 8 S.C.R.

A democracy. Dignity has a central normative role as well as

constitutional value. When reading socio-economic rights into
human dignity, the community approach also assumes importance
along with individualistic approach to human dignity. It has now
been well recognised that at its core, human dignity contains three
elements, namely, intrinsic value, autonomy and community value.
B
These are known as core values of human dignity. These three
elements can assist in structuring legal reasoning and justifying
judicial choices in ‘hard cases’. Human dignity is a constitutional
principle, rather than free standing fundamental rights. [Paras
94, 97, 105 and 116][262-E; 264-D-E; 275-C; 279-A-B]
C Common Cause v. Union of India (2018) 5 SCC 1;
National Legal Services Authority v. Union of India
(2014) 5 SCC 438; Shabnam v. Union of India & Ors.
(2015) 6 SCC 702 : [2015] 8 SCR 289; Jeeja Ghosh
& Another v. Union of India & Ors. (2016) 7 SCC 761
D : [2016] 4 SCR 638; Aruna Ramachandra Shanbaug
v. Union of India & Ors. (2011) 4 SCC 454 : [2011] 4
SCR 1057 – relied on.
Gobind v. State of M.P. (1975) 2 SCC 148 : [1975] 3
SCR 946; Kharak Singh v. State of U.P. AIR 1963 SC
E 1295 : [1964] 1 SCR 332 – referred to.
Daniel Solove, Understanding Privacy, Cambridge,
Massachusetts: Harvard University Press, 2008;
Ronald Dworkin, Taking Rights Seriously (A&C
Black, 2013) 239; Ronald Dworkin, Is Democracy
F Possible Here? Principles for a New Political Debate
(Princeton University Press, 2006); Justice for
Hedgehogs (2011) Harvard University Press, 2011;
Kenneth W. Simons, “Dworkin’s Two Principle of
Dignity: An Unsatisfactory Non-Consequentialist
Account of Interpersonal Moral Duties”, 90 Boston
G Law Rev. 715 (2010)]; ‘Human Dignity and Judicial
Interpretation of Human Rights’ Published in the
European Journal of International Law on September
01, 2008 – referred to.

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 41

4. Doctrine of Proportionality: A
Whenever challenge is laid to an action of the State on the
ground that it violates the right to privacy, the action of the State
is to be tested on the following parameters: (a) the action must
be sanctioned by law; (b) the proposed action must be necessary
in a democratic society for a legitimate aim; and (c) the extent of B
such interference must be proportionate to the need for such
interference. [Para 117][282-D-E]
Modern Dental College and Research Centre v. State
of Madhya Pradesh (2016) 7 SCC 353 – relied on.
5. Surveillance: C

5.1 Whether the architecture of the Aadhaar project enables

the State to create a regime of surveillance?; and (b) whether
there are adequate provisions for data protection?
The provisions of the Aadhaar Act and the machinery which D
the Authority has created for data protection as demonstrated by
the respondents in the powerpoint presentation showed that it is
very difficult to create profile of a person simply on the basis of
biometric and demographic information stored in CIDR. Insofar
as authentication is concerned, the respondents rightly pointed
out that there are sufficient safeguard mechanisms. It was E
specifically submitted that there were security technologies in
place, 24/7 security monitoring, data leak prevention,
vulnerability management programme and independent audits as
well as the Authority’s defence mechanism. It was further pointed
out that the Authority has taken appropriate pro-active protection F
measures, which included disaster recovery plan, data backup
and availability and media response plan. The respondents also
pointed out that all security principles are followed inasmuch as:
(a) there is PKI-2048 encryption from the time of capture,
meaning thereby, as soon as data is given at the time of enrolment,
there is an end to end encryption thereof and it is transmitted to G
the Authority in encrypted form. The said encryption is almost
foolproof and it is virtually impossible to decipher the same; (b)
adoption of best-in-class security standards and practices; and
(c) strong audit and traceability as well as fraud detection. Above
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42 SUPREME COURT REPORTS [2018] 8 S.C.R.

A all, there is an oversight of Technology and Architecture Review

Board (TARB) and Security Review Committee. This Board and
Committee consist of very high profiled officers. Therefore, the
Act has endeavoured to provide safeguards [Para 153][308-E-
H; 309-A-B]
B Selvi & Ors. v. State of Karnataka (2010) 7 SCC 263 :
[2010] 5 SCR 381; Kharak Singh v. State of U.P. AIR
1963 SC 1295 : (1964) 1 SCR 332; District Registrar
and Collector, Hyderabad and Anr. v. Canara Bank and
Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833 –
referred to.
C
R. v. Oakes [1986] 1 SCR 103; U.S. v. Jones 132 S.Ct.
945 (2012); Zakharov v. Russia (2015) Application No.
47143/2006; Digital Rights Ireland Ltd. v. Minister for
Communication, Marine and Natural Resources [2014]
All ER (D) 66 (Apr); S and Marper v. United Kingdom
D (2008) ECHR 1581 – referred to.
Robert Alexy, A Theory of Constitutional Rights,
(Oxford, Oxford University Press, 2002); John Donne,
XVII. Mediation, in Devotions upon Emergent
Occasions 107, 108-09 (Uyniv. Of Mich. Press 1959)
E (1624); M Kumm, ‘The Idea of Socratic Contestation
and the Right to Justification: The Point and Purpose
of Rights-Based Proportionality Review’ (2010) 4 Law
& Ethics of Human Rights 141; M Kumm,
‘Institutionalising Socratic Contestation: The
F Rationalist Human Rights Paradigm, Legitimate
Authority and the point of Judicial Review’ (2007) 1
European Journal of Legal Studies; K Moller, The
Global Model of Constitutional Rights (Oxford,
Oxford University Press, 2012); M Kumm, ‘Political
Liberalism and the Structure of Rights: On the Place
G and Limits of the Proportionality Requirement’ in
Pavlakos (ed), Law, Rights and Discourse: The Legal
Philosophy of Robert Alexy (Oxford, Hart Publishing,
2007) 131; Moller, the Global Model of Constitutional
Rights (Oxford, Oxford University Press, 2012) ch
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 43

7; Alexy’s ‘Second Law of Balancing’, which he A

proposes in the Postscript to A Theory of
Constitutional Rights (Oxford, Oxford University
Press, 2002); ‘Necessity and Proportionality: Towards
A Balanced Approach?’, Hart Publishing, Oxford and
Portland, Oregon, 2016; S Choudhry, ‘So What Is the
B
Real Legacy of Oakes? Two Decades of
Proportionality Analysis under the Canadian Charter’s
Section 1’ (2006) 34 Supreme Court Law Review 501
– referred to.
5.2 Internet access is becoming cheaper by the day, which
can be accessed not only through the medium of desktop C
computers or laptops and even other handy gadgets like smart
phones. However, the use of such technologies is at the cost of
giving away personal information, which is in the realm of privacy.
In order to connect with such technologies and avail their benefits,
the users are parting with their biometric information like D
fingerprints and iris as well as demographic information like their
names, parentage, family members, their age, even personal
information like their sex, blood group or even the ailments they
are suffering from. Not only this, use of said facilities on net or
any portal like Apple, Google, Facebook etc. involves tracking
their movements, including the nature of activities, like the kind E
of shopping, the places from where shopping is done, the actual
money spent thereon, the nature of movies watched etc. All this
data is there with the companies in respect of its users which
may even turn into metadata. In fact, cases after cases are reported
where such data of users is parted with various purposes. These F
have raised concerns about the privacy and protection of data.
Problem is not limited to data localisation but has become extra-
territorial. There are issues of cross-border transfers of personal
data, regulation whereof is again a big challenge with which various
opinions are grappling. When it comes to the State or the
instrumentality of the State, the matter has to be taken with all G
seriousness, on the touchstone of constitutionalism and the
concept of limited Government. [Para 159, 160, 161 and
162][311-B, G-H; 312-A-B, C-D, G]

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44 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 5.3 Law on Data Protection:

5.3.1 Legislation in India. The only existing legislation
covering data protection related to biometric information are
Section 43A and Section 72A of the IT Act and the Information
Technology (Reasonable Security Practices and Procedures and
B Sensitive Personal Data or Information) Rules, 2011. Although
the IT Act and Rules do not determine the constitutionality of
use of biometric data and information by the Aadhaar Act and
Rules, they are instructive in determining the safeguards that
must be taken to collect biometric information. Section 43A of
the IT Act attaches liability to a body corporate, which is
C possessing, handling and dealing with any ‘sensitive personal
information or data’ and is negligent in implementing and
maintaining reasonable security practices resulting in wrongful
loss or wrongful gain to any person. ‘Sensitive personal
information or data’ is defined under Rule 3 of the Sensitive
D Personal Data Rules to include information relating to biometric
data. Similarly, Section 72A of the IT Act makes intentional
disclosure of ‘personal information’ obtained under a contract,
without consent of the parties concerned and in breach of a lawful
contract, punishable with imprisonment and fine. Rule 2(i) of the
Sensitive Personal Data Rules define “personal information” to
E mean any information that relates to a natural person, which, either
directly or indirectly, in combination with other information
available or likely to be available with a body corporate, is capable
of identifying such person. Thus, biometrics will form a part of
“personal information”. The Sensitive Personal Data Rules
F provide for additional requirements on commercial and business
entities (body corporates as defined under Section 43A of the IT
Act) relating to the collection and disclosure of sensitive personal
data (including biometric information). [Paras 163-166][313-B-
E; 314-D-F; 315-A-B]
G 5.3.2 Position in other countries: (a) EUGDPR (European
Union General Data Protection Regulation): EUGDPR which was
enacted by the EU in 2016 came into force on May 25, 2018
replacing the Data Protection Directive of 1995. It is an exhaustive
and comprehensive legal framework that is aimed at protection
of natural persons from the processing of personal data and their
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 45

right to informational privacy. It deals with all kinds of processing A

of personal data while delineating rights of data subjects and
obligations of data processors in detail. (b) Biometric Privacy
Act in the United States of America. [Para 166, 168][316-G; 317-
A-B; 318-D-E]
S and Marper v. United Kingdom [2008] ECHR 1581 B
– referred to.
Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of
personal data and on the free movement of such data, C
and repealing Directive 95/46/EC (General Data
Protection Regulation) – referred to.
5.3.3 Case laws: Data collection, usage and storage
(including biometric data) in Europe requires adherence to the
principles of consent, purpose and storage limitation, data D
differentiation, data exception, data minimization, substantive and
procedural fairness and safeguards, transparency, data protection
and security. Only by such strict observance of the above
principles can the State successfully discharge the burden of
proportionality while affecting the privacy rights of its citizens.
The jurisprudence with respect to collection, use and retention E
of biometric information in the United States differs from the EU.
In the US context, there is no comprehensive data protection
regime. This is because of the federal system of American
government, there are multiple levels of law
enforcement¯federal, state, and local. Different states have F
differing standards for informational privacy. Thus, importance
to data protection in processing the data of the citizens is an
accepted norm. Observance of this fundamental principle is
necessary to prevent a disproportionate infringement of the
Fundamental Right of Privacy of a citizen. [Paras 187, 188, 189,
190][326-A-B, E-F] G
Digital Rights Ireland Ltd v. Minister for
Communication, Marine and Natural Resources [2014]
All ER (D) 66 (Apr); Tele2 Sverige AB v. Post-och
telestyrelsen and Secretary of State for the Home
Department v. Tom Watson, Peter Brice, Geoffrey H
46 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Lewis, Joined Cases C-203/15 and C-698/15, 2016;

BverfG 2.03.2010, 1 BvR 256/ 08, 1 BvR 263 / 08, 1
BvR 586/08; Maximillian Schrems v. Data Protection
Commissioner [2016] 2 W.L.R. 873; Szabo and Vissy v.
Hungary Eur. Ct. H.R. 2016; 186 – referred to.
B 6. Data Minimisation: Demographic information, both
mandatory and optional, and photographs does not raise a
reasonable expectation of privacy under Article 21 unless there
is special circumstances such as juveniles in conflict of law or a
rape victim’s identity. Today, all global ID cards contain
photographs for identification alongwith address, date of birth,
C gender etc. The demographic information is readily provided by
individuals globally for disclosing identity while relating with
others and while seeking benefits whether provided by
government or by private entities, be it registration for citizenship,
elections, passports, marriage or enrolment in educational
D institutions. Email Ids and phone numbers are also available in
public domain. Aadhaar Act only uses demographic information
which are not sensitive and where no reasonable expectation of
privacy exists - name, date of birth, address, gender, mobile
number and e mail address. Section 2(k) specifically provides
that Regulations cannot include race, religion, caste, tribe,
E ethnicity, language, records of entitlement, income or medical
history. Thus, sensitive information specifically stand excluded.
Section 32(3) of the Aadhaar Act specifically prohibits the authority
from collecting, storing or maintaining, either directly or indirectly
any information about the purpose of authentication. The proviso
F to Regulation 26 is also to the same effect. Thus, the principle of
data minimization is largely followed.[Paras 193-195][327-F-H;
328-A-C]
7. Some other provisions which are challenged on the basis
of threat to security of the data. Section 2(c) pertains to
G authentication. It is a process by which Aadhaar number along
with demographic information or biometric information of an
individual is submitted to the CIDR for its verification. On
submission thereof, the CIDR verifies the correctness or lack of
it. Section 10 lays down that the Authority may engage one or
more entities to establish or maintain the CIDR and to perform
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 47

any other functions as may be specified by regulations. While A

seeking authentication, neither the location of the person whoso
identity is to be verified nor the purpose for which authentication
of such identity is needed, comes to the knowledge of the
Authority and, therefore, such data collected by the Authority.
Therefore, the threat to real time surveillance and profiling may
B
be far-fetched. The authentication record would only contain
information about the identity about the RE. It will give
information only about the RE (nic.in) and not about the
organisation which is requiring authentication through the RE.
In most cases the authentication is one time. [Paras 196,
197][328-G; 329-B-C] C
8. Time Period for Data Retention:
According to petitioners, the data is allowed to be retained
for an unreasonable long period of time. Regulation 27 of the
Authentication Regulations requires the UIDAI to retain the
“authentication transaction data” (which includes the meta data) D
for a period of 6 months and to archive the same for a period of 5
years thereafter. Regulation 18(3) and 20(3) allow Requesting
entities (RE) and Authentication Service Agencies to retain
the authentication logs for a period of 2 years and then archive
them for 5 years. It is required to be deleted only after 7 years E
unless retained by a court. There is is no reason for archiving
the authentication transaction data for a period of five years.
Retention of this data for a period of six months is more than
sufficient after which it needs to be deleted except when such
authentication transaction data are required to be maintained by
a Court or in connection with any pending dispute. Regulations F
26 and 27 shall, therefore, be amended accordingly. [Para
205][332-E-F, H; 333-A]
9. Data Protection and Security: Apprehension of
petitioners was that there were not enough safeguards for data
protection and security in the Act. The following explanation G
furnished by the respondents on various facets ensures data
protection and security to a considerable extent:
(a) CIDR – Regulation 3(i) & (j) of Aadhaar (Data Security)
Regulation 2016 enables partitioning of CIDR network into zones
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48 SUPREME COURT REPORTS [2018] 8 S.C.R.

A based on risk and trust and other security measures. CIDR being
a computer resource is notified to be a “Protected System” under
Section 70 of the IT Act, 2000 by the Central Government on
11.12.2015. Anyone trying to unlawfully gain access into this
system is liable to be punished with 10 years imprisonment and
fine. The storage involves end to end encryption, logical
B
partitioning, firewalling and anonymisation of decrypted biometric
data. Breaches of penalty are made punitive by Chapter VII of
the Act. [Paras 207, 208][333-B, G-H; 334-A-B]
(b) Requesting Entities (AUA and KUA) – Other identity
information is shared with Requesting Entity (AUAs and KUAs)
C only for the limited purpose of authentication. The data is
transferred from the RE to the ASA (Authentication Service
Agency) to the CIDR in an encrypted manner through a leased
line circuitry using secure Protocols. The storage of data
templates is in safely located servers with no public internet inlet/
D outlet, and offline storage of original encrypted data (PID blocks).
There are safety and security provisions such as audit by
Information Systems Auditor. REs are appointed through
agreement. REs can enter into agreement with sub-AUA or sub-
KUA with permission of the UIDAI. Whatever identity information
is obtained by the requesting entity is based on a specific consent
E of the Aadhaar number holder. The e-KYC data shared with the
RE can only be after prior consent of the Aadhaar holder. Such
data cannot be shared and has to be stored in encrypted form.
The biometric information used is not permitted to be stored
only the logs of authentication transactions are maintained for a
F short period. Full identity information is never transmitted back
to RE. There is a statutory bar from sharing Biometric
information. The Data centres of ASA, REs and CIDR should be
within the territory of India. [Para 209][334-C-F]
(c) Enrolment Agencies and Registrars – The enrolment
G and Authentication processes are strongly regulated so that data
is secure. The Enrolment agency, which collects the biometric
and demographic of the individuals during enrolment, is appointed
either by UIDAI or by a Registrar. The registrar are appointed
through MoUs or agreements for enrolment and are to abide by
a code of conduct and processes, policies and guidelines issued
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 49

by the authority. They are responsible for the process of A

enrolment. Categories of persons eligible for appointment are
limited by the Regulations. The agency employs a certified
supervisor, an operator and a verifier under Enrolment and Update
Regulations. Registrars, enrolling agencies are obliged to use
the software provided or authorized by UIDAI for enrolment
B
purpose. The standard software has security features as specified
by Authority. All equipment used are as per the specification
issued by the authority. The Registrars are prohibited from using
the information collected for any purpose other than uploading
the information to CIDR. Sub-contracting of enrolment function
is not allowed. The Code of Conduct contains specific directions C
for following the confidentiality, privacy and security protocols
and submission of periodic reports of enrolment. Not only there
are directions prohibiting manipulation and fraudulent practices
but the Act contains penal provisions for such violations in
Chapter VII of the Regulations. The enrolment agencies are
D
empanelled by the authority. They are given an enrolling agency
code using which the Registrar can onboard such agency to the
CIDR. The enrolment data is uploaded to the CIDR certified
equipment and software with a digital signature of the registrar/
enrolling agency. The data is encrypted immediately upon capture.
The decryption key is with the UIDAI solely. [Para 210][334-G- E
H; 335-A-E]
(d) Authentication Service Agency – Authentication only
becomes available through the Authentication Service Agency
(ASA). They are regulated by the Aadhaar (Authentication)
Regulations, 2016. They are to use certified devices, equipment, F
or software are duly registered with or approved or certified by
the Authority/agency. The systems and operations are audited
by information system auditor. The REs pass the encrypted data
to the CIDR through the ASA and the response (Yes/No
authentication or e-KYC information) also takes the same route
back. The server of the ASA has to perform basic compliance G
and completeness checks on the authentication data packet before
forwarding it to the CIDR. [Para 211]335-F-H]
(e) Hacking – So far there has been no incidence of hacking.
However, the authority is conscious of the hackers and it
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50 SUPREME COURT REPORTS [2018] 8 S.C.R.

A constantly updates itself to safe guard the data. Of late certain

reports have appeared in newspapers to the effect that some
people could hack the website of CIDR, though it is emphatically
denied by the UIDAI. [Para 212][336-A-C]
(f) Biometric Solution Providers – With respect to foreign
B companies owning software, Respondents submit that UIDAI has
entered into licensing agreements with foreign biometric solution
providers (BSP) for software. Even though the source code of
the software are retained by the BSP as it constitutes their
Intellectual property, the data in the server rooms is secure as
the software operates automatically and the biometric data is
C stored offline. There is no opportunity available to BSP to extract
data as they have no access to it. [Para 213][336-D-E]
10. Substantive, Procedural or Judicial Safeguards:
The Union Government, on 31 July 2017, had constituted
D a committee chaired by Retd. Justice B N Srikrishna, former
Judge of the Supreme Court of India to review data protection
norms in the country and to make recommendations. The
Committee recently released its report and the first draft of the
Personal Data Protection Bill, 2018 which comprehensively
addresses the processing of personal data where such data has
E been collected, disclosed, shared or otherwise processed within
the territory of India. The bill has incorporated provisions and
principles from the Europe’s General Data Protection Regulation
(EUGDPR). The Bill largely incorporates data protection
principles from the EUGDPR and EU data protection
F jurisprudence, including fair and reasonable processing of data,
purpose limitation, collection limitation, lawful processing,
storage limitation, data quality and accountability. The Draft bill
and the report cull out rights and obligations of the data fiduciary
and data controller respectively. These rights include the right
to access and correction, the right to data portability and right to
G be forgotten – a right to prevent or restrict disclosure of personal
data by a fiduciary. Most importantly, consent has been given a
crucial status in the draft data protection law. Thus, a primary
basis for processing of personal data must be individual consent.
This consent is required to be free, informed, specific, clear and,
H in an important addition, capable of being withdrawn. The
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 51

Authority under the Bill is obligated and empowered to ensure A

protection of data from misuse and compromise. [Paras 223, 225,
229][340-F-G; 341-B-D]
11. Privacy: Whether Aadhaar Act violates right to privacy
and is unconstitutional on this ground?
11.1 As per Section 7 of the Aadhaar Act in case an individual B
wants to avail any subsidy benefit or services, she is required to
produce the Aadhaar number and, therefore, it virtually becomes
compulsory for such a person. To that extent the petitioners may
be right in submitting that even if enrolment in Aadhaar is
voluntary, it assumes the character of compulsory enrolment for C
those who want to avail the benefits under Section 7. Likewise,
authentication, as mentioned in Section 8, also becomes
imperative. The relevant question, therefore, is as to whether
invasion into this privacy meets the triple requirements or right
to privacy. The Parliament has now passed Aadhaar Act, 2016.
Therefore, law on the subject in the form of a statute very much D
governs the field and, thus, first requirement stands satisfied.
In the Statement of Objects and Reasons, it is inter alia mentioned
that though number of social benefits schemes have been floated
by the Government, the failure to establish identity of an individual
has proved to be a major hindrance for successful implementation E
of those programmes as it was becoming difficult to ensure that
subsidies, benefits and services reach the intended beneficiaries
in the absence of a credible system to authenticate identity of
beneficiaries. The rationale behind Section 7 lies in ensuring
targeted delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India. In discharge of its F
solemn Constitutional obligation to enliven the Fundamental
Rights of life and personal liberty (Article 21) to ensure Justice,
Social, Political and Economic and to eliminate inequality (Article
14) with a view to ameliorate the lot of the poor and the Dalits,
the Central Government has launched several welfare schemes. G
Some such schemes are PDS, scholarships, mid day meals, LPG
subsidies, etc. These schemes involve 3% percentage of the
GDP and involve a huge amount of public money. Right to receive
these benefits, from the point of view of those who deserve the
same, has now attained the status of fundamental right based on
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52 SUPREME COURT REPORTS [2018] 8 S.C.R.

A the same concept of human dignity, which the petitioners seek to

bank upon. Right of everyone to adequate food no more remains
based on Directive Principles of State Policy (Art 47), though the
said principles remain a source of inspiration. This entitlement
has turned into a Constitutional fundamental right. The scheme
of the Act designs a targeted public distribution system for
B
providing food grains to those below BPL. The object is to ensure
to the people adequate food at affordable prices so that people
may live a life with dignity. In a welfare State, where measures
are taken to ameliorate the sufferings of the downtrodden, the
aim of the Act is to ensure that these benefits actually reach the
C populace for whom they are meant. This is naturally a legitimate
State aim. [Paras 261, 263, 266][359-B-D; 360-D-E; 364-D-F;
365-A-B, D]
His Holiness Kesavananda Bharati Sripadagalavaru
v. State of Kerala & Anr. (1973) 4 SCC 225 : [1973]
D Suppl. SCR 1 – followed.
Gobind v. State of M.P. (1975) 2 SCC 148 : [1975] 3
SCR 946; Chairman, All India Railway Recruitment
Board v. K Shyam Kumar and others (2010) 6 SCC 614
: [2010] 6 SCR 291; Common Cause v. Union of India
E [2014] 3 SCR 289; PUCL v. Union of India (2011) 14
SCC 331; G. Sundarrajan v. Union of India (2013) 6
SCC 620 – referred to.
Jordan & Ors v. State (2002) ZACC 22; Cruzan v.
Director, Missouri Dept. of Health 497 US 361 (1990)
F – referred to.
11.2 In order to meet the test of proportionality, four sub-
components of proportionality need to be satisfied: (a) A measure
restricting a right must have a legitimate goal (legitimate goal
stage). (b) It must be a suitable means of furthering this goal
G (suitability or rationale connection stage). (c) There must not be
any less restrictive but equally effective alternative (necessity
stage). (d) The measure must not have a disproportionate impact
on the right holder (balancing stage). [Para 267][367-E-F]
11.3 Whether these components meet the required
parameters in the instant case.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 53

(a) Legitimate Goal Stage: The purpose of Aadhaar Act, as A

captured in the Statement of Objects and Reasons and sought to
be implemented by Section 7 of the Aadhaar Act, is to achieve
the stated objectives. [Paras 268, 276][363-G; 371-A-B]
People’s Union for Civil Liberties (PUCL) v. Union of
India (2001) 5 SCALE 303; State of Bihar & Ors. v. B
Project Uchcha Vidya, Sikshak Sangh & Ors. Civil
Appeal No. 6626-6675 of 2001; Ashoka Thakur v.
Union of India Writ Petition (Civil) No. 265 of 2006,
judgment delivered on April 10, 2008; Paschim Banga
Ket Mazdoor Samity v. State of West Bengal (1996) 4
SCC 37 : [1996] 2 Suppl. SCR 331; Mohini Jain v. C
State of Kerala & Ors. (1992) 3 SCC 666 : [1992] 3
SCR 658; Unnikrishnan v. State of Andhra Pradesh
(1993) 1 SCC 645 : [1993] 1 SCR 594; Olga Tellis &
Ors. v. Bombay Municipal Corporation & Ors. [1985]
SCR 2 Suppl. 51; Francis Coralie Mullin v. The D
Administrator, Union Territory of Delhi & Ors. [1981]
2 SCR 516 – relied on.
(b) Suitability or rationale connection stage: The measures
which are enumerated and been taken as per the provisions of
Section 7 read with Section 5 of the Aadhaar Act are rationally E
connected with the fulfillment of the objectives contained in the
Aadhaar Act. The scheme for enrolling under the Aadhaar Act
and obtaining the Aadhaar number is optional and voluntary. It is
given the nomenclature of unique identity. A person with Aadhaar
number gets an identity. By providing that the benefits for various
welfare schemes shall be given to those who possess Aadhaar F
number and after undergoing the authentication as provided in
Section 8 of the Aadhaar Act, the purpose is to ensure that only
rightful persons receive these benefits. It becomes the duty of
the Government to ensure that it goes to deserving persons.
Therefore, second component also stands fulfilled. [Paras 277, G
279][371-C-D; 372-C-D]
(c) Necessity Stage: The manner in which malpractices
have been committed in the past leaves to hold that apart from
the system of unique identity in Aadhaar and authentication of
the real beneficiaries, there is no alternative measure with lesser
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54 SUPREME COURT REPORTS [2018] 8 S.C.R.

A degree of limitation which can achieve the same purpose. [Para

280][372-E-F]
(d) Balancing Stage: No doubt, there is a right to privacy,
which is now entrenched in fundmental rights. On the other hand,
it is the rights of those persons whose dignity which is sought to
B be ensured by giving them the facilities which are necessary to
live as dignified life. Therefore, balancing has to be done at two
levels, rights to privacy on one hand and right to food, shelter
and employment on the other hand. In the first instance, it is to
be seen as to whether the petitioners claim on the information
supplied while authentication to be protected is based on
C reasonable expectation. ‘Reasonable Expectation’ involves two
aspects. First, the individual or individuals claiming a right to
privacy must establish that their claim involves a concern about
some harm likely to be inflicted upon them on account of the
alleged act. This concern ‘should be real and not imaginary or
D speculative’. Secondly, ‘the concern should not be flimsy or
trivial’. It should be a reasonable concern. [Para 285, 288,
289][374-A-B; 376-E-G]
Katz v. US 389 U.S. 347; Smith v. Marlyand 442 US
735; R. Wood v. Commissioner (2010) 1 WLR 123 –
referred to.
E
11.4 The second facet of balancing, namely, balancing of
two fundamental rights. The Aadhaar Act truly seeks to secure
to the poor and deprived persons an opportunity to live their life
and exercise their liberty. By ensuring targeted delivery through
digital identification, it not only provides them a nationally
F recognized identity but also attempts to ensure the delivery of
benefits, service and subsidies with the aid of public exchequer/
Consolidated Fund of India. National Security Food Act, 2013
passed by the Parliament seeks to address the issue of food,
security at the household level. The scheme of that Act is aimed
at providing food grains to those belonging to BPL categories.
G
Like the MGNREGA Act, 2005 takes care of employment. The
MGNREGA Act has been enacted for the enhancement,
livelihood, security of the households in rural areas of the country.
It guarantees at least 100 days of wage employment in every
financial year to at least one able member of every household in
H the rural area on assets creating public work programme.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 55

Sections 3 and 4 of the MGNREGA Act contain this guarantee. A

The minimum facilities to be provided are set out by Section 5
read with Schedule II. Section 22 provides for funding pattern
and Section 23 provides for transparency and accountability. This
Act is another instance of a rights based approach and it enlivens
the Fundamental Right to life and personal liberty of Below
B
Poverty Line people in rural areas. The inroads into the privacy
rights where these individuals are made to part with their
biometric information, is minimal. It is coupled with the fact that
there is no data collection on the movements of such individuals,
when they avail benefits under Section 7 of the Act thereby ruling
out the possibility of creating their profiles. In fact, this C
technology becomes a vital tool of ensuring good governance in
a social welfare state. Therefore, the Aadhaar Act meets the test
of balancing as well. Thus, even when two aspects of the
fundamental rights of the same individual, which appear to be in
conflict with each other, is done, the Aadhaar Act has struck a
D
fair balance between the right of privacy of the individual with
right to life of the same individual as a beneficiary. In the face of
the all pervading prescript for accomplished socio-economic
rights, that need to be given to the deprived and marginalised
section of the society, as the constitutional imperative embodied
in these provisions of the Act, it is entitled to receive judicial E
imprimatur. [Para 298, 309, 313][379-G-H; 380-A-D; 390-A-B;
394-G-H; 395-A-B]
People’s Union for Civil Liberties (PUCL) & Anr. v.
Union of India & Anr. (2003) 4 SCC 399 : [2003] 2
SCR 1136; Subramanian Swamy v. Union of India, F
Ministry of Law & Ors. (2016) 7 SCC 221 : [2016] 3
SCR 865 – relied on.
Government of the Republic of South Africa & Ors. v.
Grootboom (2000) ZACC 19; Budina v. Russia App.
No. 45603/05 decided on 18.06.2009; Vernonia School
District 47J v. Acton et ux., Guardians Ad Litem for G
Acton 515 US 646 (1995) – referred to.
12. Exclusion: The Authority has claimed that biometric
accuracy is 99.76%. Petitioner’s contention was that where more
than 110 crores of persons have enrolled themselves, even
0.232% failure would be a phenomenal figure the rate of exclusion H
56 SUPREME COURT REPORTS [2018] 8 S.C.R.

A is alarming and this would result in depriving needy persons to

enjoy their fundamental rights, which is the so-called laudable
objective trumpeted by the respondents. The Act is aimed at
achieving the public purpose, striving to benefit millions of
deserving people. It cannot be invalidated only on the ground
that there is a possibility of exclusion of some of the seekers of
B
these welfare schemes. There is also situation where the
formation of fingerprints may undergo change for various reasons.
Even iris test can fail due to certain reasons including blindness
of a person. No person rightfully entitled to the benefits shall be
denied the same on such grounds. It would be appropriate if a
C suitable provision be made in the concerned regulations for
establishing an identity by alternate means, in such situations.
Furthermore, if there is a 0.232% failure in authentication, it also
cannot be said that all these failures were only in those cases
where authentication was for the purpose of utilising for the benefit
of the welfare schemes, i.e. with reference to Section 7 of the
D
Act. It could have happened in other cases as well. In order to
address the failures of authentication, the remedy is to adopt
alternate methods for identifying such persons, after finding the
causes of failure in their cases. The Government cannot enlarge
the scope of subsidies, services and benefits. ‘Benefits’ should
E be such which are in the nature of welfare schemes for which
resources are to be drawn from the Consolidated Fund of India.
A benefit which is earned by an individual (e.g. pension by a
government employee) cannot be covered under Section 7 of
the Act, as it is the right of the individual to receive such benefit.
Notifications which are issued under Section 7 of the Aadhaar
F
Act pertain to various welfare schemes under which benefits,
subsidies or services are provided to the intending recipients.
Moreover, in order to avail the benefits, only one time verification
is required except for few services where annual verification is
needed. The ‘benefits’ and ‘services’ as mentioned in Section 7
G should be those which have the colour of some kind of subsidies
etc., namely, welfare schemes of the Government whereby
Government is doling out such benefits which are targeted at a
particular deprived class. The expenditure thereof has to be
drawn from the Consolidated Fund of India. On that basis, CBSE,
NEET, JEE, UGC etc. cannot make the requirement of Aadhaar
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 57

mandatory as they are outside the purview of Section 7 and are A

not backed by any law. [Paras 314, 318, 319, 321, 322][395-E-F;
396-F-G; 397-A-D; 398-A-B, D-H; 399-C-D]
13. Children: Article 21A of the Constitution guarantees
right to education and makes it fundamental right of the children
between 6 years and 14 years of age. Such a right cannot be taken B
away by imposing requirement of holding Aadhaar card, upon the
children. In view thereof, admission of a child in his school cannot
be covered under Section 7 of the Aadhaar Act as it is neither
subsidy nor service. No doubt, the expression ‘benefit’ occurring
in Section 7 is very wide. At the same time, it has to be given
restrictive meaning and the admission of children in the schools, C
when they have fundamental right to education, would not be
covered by Section 7. [Paras 324, 325][400-B-C]
R.D. Upadhyay v. State of Andhra Pradesh & Ors.
(2007) 15 SCC 49 – relied on.
Murray v. Big Pictures (UK) Ltd. (2008) 3 WLR 1360 D
– referred to.
14. Issue of validity of some of the other provisions of the
Aadhaar Act.
14.1 Insofar as Section 2(l) read with Regulation 23 of the
Aadhaar (Enrolment and Update) Regulations is concerned which E
deals with ‘enrolling agency’, main challenge is on the ground
that the work of an enrolment could not have been given to a
private entity as private entity cannot be entrusted with the
crucial task of explaining the nature of Aadhaar enrolment and
securing informed consent. Further, the task of collection of
F
sensitive personal biometric and demographic data and
information for the purpose of storage cannot be given to private
hands. However, having regard to the nature of process that has
been explained by the Authority, which ensures that immediately
on enrolment, the concerned data collected by the private entity
is beyond its control; it gets encrypted; and stands transmitted G
to CIDR, there is no basis of the apprehension expressed by the
petitioners. [Para 334][412-B-D]
14.2 Section 3, by the very language thereof, mentions that
it is an enabling provision which ‘entitles’ every resident to obtain
Aadhaar number. Therefore, it is voluntary in nature.
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58 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Apprehension of petitioner that section 3 is mandatory stands

assuaged. [Para 336][412-F-G; 414-A]
14.3 Section 33 provides for disclosure of information in
certain cases. The challenge to this provision is predicated on
the ground that it provides for the use of Aadhaar database for
police verification which is against the ethos of Article 20(3) of
B
the Constitution which is a rule against self incrimination. Sub-
section (2) of Section 33 enables disclosure of information
including identity information records in the interest of national
security. Disclosure of information in the interest of national
security cannot be faulted with. However, giving of such important
C power in the hands of Joint Secretary may not be appropriate.
There has to be a higher ranking officer along with, preferably, a
Judicial Officer. The provisions contained in Section 33(2) of the
Act to the extent it gives power to Joint Secretary is, therefore,
struck down giving liberty to the respondents to suitably enact a
provision on the aforesaid lines, which would adequately protect
D
the interest of individuals. [Paras 343, 349][415-G-H; 416-A; 419-
G-H; 420-A-B]
14.4 Section 47 provides that the cognizance would be taken
only on a complaint made by the Authority or any officer or person
authorised by it. Petitioners feel aggrieved by this provision as
E it does not permit an individual citizen whose rights are violated,
to initiate the criminal process. It would be in the fitness of things
if Section 47 is amended by allowing individual/victim whose right
is violated, to file a complaint and initiate the proceedings. Section
48 cannot be treated as vague or arbitrary. ‘Public Emergency’
F is the expression which has been used in several other
enactments and held to be constitutional. It can always be subject
to scrutiny of the Courts. [Paras 352, 353, 354][420-F-G; 421-F-
G]
Ex-Armymen’s Protection Services Private Limited v.
Union of India & Ors. (2014) 5 SCC 409 : [2014] 3
G SCR 359; People’s Union for Civil Liberties (PUCL) v.
Union of India & Anr. (1997) 1 SCC 301 : [1996] 10
Suppl. SCR 321 – relied on.
Raj Kumar Gupta v. Lt. Governor, Delhi & Ors. (1997)
1 SCC 556 : [1996] 8 Suppl. SCR 464; State (NCT of
H Delhi) v. Sanjay (2014) 9 SCC 772 : [2014] 9 SCR 1063
– referred to
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 59

R. v. Oakes (1986) 1 SCR 103; Quebec Ass’n of A

Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66;
Vriend v. Alberta (1998) 1 SCR 493; R. v. Zundel (1992)
2 SCR 731; R. v. Big M Drug Mart Ltd. (1985) 1 SCR
295 – referred to.
Nicholas Emiliou, The Principle of Proportionality in B
European Law: A comparative Study 5 (Kluwer Law
Int’l. 1996) – referred to.
14.5 Section 59 uses the expression ‘anything done or any
action under the resolution’. This terminology used in the
provision by the legislature is clearly to cover all actions of the C
Authority including enrolment of individuals into Aadhaar scheme.
The words ‘shall be deemed to have been validly done or taken
under this Act’ at the end of the Section put the things beyond
any pale of doubt. The legislative intent is clear, namely, to make
the provision retrospective so as to cover the actions of the
Authority from the date of its establishment. Reading the provision D
in the manner the petitioners suggest would have the effect of
annulling Section 59 itself. Such an interpretation cannot be
countenanced. [Para 371][426-F-H; 427-A]
West Ramnad Electric Distribution Co., Ltd. v. State of
Madras & Anr. [1963] 2 SCR 747 – followed. E

Bishambhar Nath Kohli & Ors. v. State of Uttar Pradesh

& Ors. [1966] 2 SCR 158; State of Mysore & Anr. v. D.
Achiah Chetty, Etc.(1969) 1 SCC 248 : [1969] 3 SCR
55; State of Karnataka v. State of Tamil Nadu & Ors.
(2017) 3 SCC 362 : [2016] 8 SCR 499 – relied on. F
14.6 When the Aadhaar scheme/project under the Act has
been saved from the challenge to its constitutionality, there is no
reason to invalidate the enrolments which were made prior to
the passing of this Act as it would lead to unnecessary burden
and exercise of enrolling these persons all over again. Instead G
the problem can be solved by eliciting ‘consent’ of all those persons
who were enrolled prior to the passing of the Act. Since, enrolment
is voluntary in nature, those who specifically refuse to give the
consent, they would be allowed to exit from Aadhaar scheme.
After all, by getting Aadhaar card, an individual so enrolled is
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60 SUPREME COURT REPORTS [2018] 8 S.C.R.

A getting a form of identity card. It would still be open to such an

individual to make use of the said Aadhaar number or not. Those
persons who need to avail any subsidy, benefit or service would
need Aadhaar in any case. It would not be proper to cancel their
Aadhaar cards. If direction is given to invalidate all those
enrolments which were made prior to 2016 then such persons
B
will have to undergo the rigours of getting themselves enrolled
all over again. On the other hand, those who do not get any
benefit of the nature prescribed under Section 7 of the Act, it
would always be open for them not to make use of Aadhaar card
or to make use of this card in a limited sense, namely, showing it
C as a proof of their identity, without undergoing any authentication
process. Therefore, to a large extent, it does not harm this later
category as well. The validity of Section 59 is upheld. As a
corollary, Aadhaar for the period from 2009 to 2016 also stands
validated. [Para 373][431-A-F]
D 15. Limited Government, Good Governance, Constitutional
Trust and Constitutionalism:
The matter is examined keeping in view the fundamental
principles of constitutionalism in mind, and more particularly the
principle that the concept of ‘limited government’ is applicable
E having regard to the fact that the three limbs of the State are to
act within the framework of a written Constitution which assigns
specific powers to each of the wing of the State and this
presupposes that the sovereign power of the Parliament is
circumscribed by the provisions of the Constitution and the
legislature is supposed to Act within the boundaries delineated
F by the Constitution. The constitutionalism, which is the bedrock
of rule of law, is to be necessarily adhered to by the Parliament.
Further, the power of judicial review which is accorded to the
courts can be exercised to strike down any legislation or executive
action if it is unconstitutional. It is difficult to agree with the
G sweeping proposition advanced by the petitioners that the Aadhaar
project is destructive of limited government and constitutional
trust. [Paras 387, 388][443-D-G]
Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1 – followed.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 61

State of M.P. v. Thakur Bharat Singh (1967) 2 SCR A

454; Gobind v. State of M.P. (1975) 2 SCC 148 : [1975]
3 SCR 946; S.P. Sampath Kumar v. Union of India
(1987) 1 SCC 124 : [1987] 1 SCR 435; Sub-Committee
on Judicial Accountability v. Union of India (1991) 4
SCC 699; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 :
B
[2007] 1 SCR 706; Nandini Sundar v. State of
Chhattisgarh (2011) 7 SCC 547 : [2011] 8 SCR 1028;
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
: [1981] 1 SCR 206; Manoj Narula v. Union of India
(2014) 9 SCC 1 : [2014] 9 SCR 965; Government of
NCT of Delhi v. Union of India (2018) SCC Online SC C
661 – referred to.
Divan quotes Seervai in his book Constitutional Law
of India; H.M. Seervai, Constitutional Law of India: A
Critical Commentary (N.M. Tripathi Private Limited,
Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937 – D
referred to.
16. Money Bill: Is the Aadhaar Act a validly enacted law
having been passed as a Money Bill?
16.1 Section 23(2)(h) enables the Authority to specify the
manner of use of Aadhaar with specific purpose in mind, namely, E
for providing or availing of various subsidies, benefits and
services. These are relatable to Section 7. However, it uses the
expression ‘other purposes’ as well. The expression ‘other
purposes’ can be read ejusdem generis which would have its
relation to subsidies, benefits and services as mentioned in
Section 7 and it can be confined only to that purpose i.e. scheme F
of targeted delivery for giving any grant, relief etc. when it is
chargeable to Consolidated Fund of India. Therefore, this
provision, can be read as incidental to the main provision and
would be covered by Article 110(g) of the Constitution. [Para
410][464-B-D] G
16.2 Section 54 confers power upon the Authority to make
regulations consistent with the Act and rules made thereunder,
for carrying out the provisions of the Act. The interpretation given
to Section 23(2)(h) would apply to Section 54(2)(m) as well and,
therefore, there is no problem with this provision also. Now
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62 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Section 57 of the Aadhaar Act mentions that Aadhaar Act would

not prevent use of Aadhaar number for other purposes under the
law. It is only an enabling provision as it permits the use of Aadhaar
number for other purposes as well. This provision is to be viewed
in the backdrop that Section 7 is the core provision. It has
substantial nexus with the appropriation of funds from the
B
Consolidated Fund of India and is directly connected with Article
110 of the Constitution. To facilitate this, UIDAI is established
as Authority under the Act which performs various functions
including that of a regulator needing funds for staff salary and it’s
own expenses. The Authority is the performer in chief, the
C predominant dramatis personae. It appoints Registrars, enrollers,
REs and ASAs; it lays down device and software specifications,
and develops softwares too; it enrols; it de-duplicates; it
establishes CIDR and manages it; it authenticates; it inspects; it
prosecutes; it imposes disincentives; etc. And all this it does
based on funds obtained by appropriations from Consolidated Fund
D
of India (Section 24). [Paras 410, 411][464-D-E, F-H; 465-A-B]
Kuldip Nayar & Ors. v. Union of India & Ors. (2006) 7
SCC 1 : [2006] 5 Suppl. SCR 1 – relied on.
Hari Ram & Ors. v. Babu Gokul Prasad (1991) Supp.
2 SCC 608; M/s. Saru Smelting (P) Ltd. v. Commissioner
E of Sales Tax, Lucknow (1993) Supp. 3 SCC 97 : [1993]
3 SCR 719; S.R. Bommai & Ors. v. Union of India &
Ors. (1994) 3 SCC 1 : [1994] 2 SCR 644; Raja Ram
Pal v. Hon’ble Speaker, Lok Sabha & Ors. (2007) 3
SCC 184 : [2007] 1 SCR 317; Kihoto Hollohan v.
F Zachillhu & Ors. (1992) Supp. 2 SCC 651 : [1992] 1
SCR 686; Mohd. Saeed Siddiqui v. State of Uttar
Pradesh & Anr. (2014) 11 SCC 415; Yogendra Kumar
Jaiswal & Ors. v. State of Bihar & Ors. (2016) 3 SCC
183; Mangalore Ganesh Beedi Works v. State of Mysore
& Anr., [1963] Supp 1 SCR 275; Ramdas Athawale v.
G Union of India & Ors., (2010) 4 SCC 1 : [2010] 3
SCR 1059; M.S.M. Sharma v. Dr. Shree Krishna Sinha
& Ors., AIR 1960 SC 1186; Patna Zilla Truck Owners
Association & Ors. v. State of Bihar & Ors. AIR 1963
Pat 16; State of Punjab v. Sat Pal Dang & Ors. [1969]
H 1 SCR 478; A.S. Krishna v. State of Madras, (1957)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 63

SCR 399; Union of India & Ors. v. Shah Goverdhan L. A

Kabra Teachers’ College, (2002) 8 SCC 228 : [2002] 3
Suppl. SCR 220; P.N. Krishna Lal & Ors. v. Government
of Kerala & Anr., (1995) Supp 2 SCC 187 : [1994] 5
Suppl. SCR 526 – referred to.
16.3 Section 57 only enables holder of Aadhaar number to B
use the said number for other purposes as well. That would not
take away or dilute the sheen of clause 7 (now Section 7) for
which purposes the Bill was introduced as Money Bill. In any
case, a part of Section 57 has already declared unconstitutional
whereby even a body corporate in private sector or person may
seek authentication from the Authority for establishing the identity C
of an individual. For all the said reasons, Bill was rightly
introduced as Money Bill. Main provision is a part of Money
Bill and other are only incidental and, therefore, covered by clause
(g) of Article 110 of the Constitution. [Para 412][465-C-D, E]
17. Section 139AA of the Income Tax Act, 1961 D
The Constitution Bench in K. S. Puttaswamy laid down the
triple test which need to be satisfied for judging the permissible
limits for invasion of privacy while testing the validity of any
legislation. In the instant case, there is no dispute that first
requirement stands satisfied as Section 139AA is a statutory E
provision and, there is backing of law. Insofar as requirement of
‘legitimate State interest’ is concerned, Section 139AA is enacted
to link PAN number with Aadhaar number which is issued under
the Act for the purpose of eliminating duplicate PANs from the
system with the help of robust technology solution. Therefore,
those who have PAN number and have already provided the F
information required to get PAN number cannot claim to have
any legitimate expectation of withholding any data required for
Aadhaar under the ground of privacy. Also, there was justifiable
reason with the State for collection and storage of data in the
form of Aadhaar and linking it with PAN insofar as Section 139AA
G
of the 1961 Act is concerned. The provisions of Section 139AA
of the Income Tax Act, 1961 meet the triple test of right to privacy,
contained in K.S. Puttaswamy. [Paras 417, 418, 420, 424, 425][467-
F, G; 468-E-F; 477-C-D; 479-D]

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64 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 18. Prevention of Money Laundering Rules:

18.1 Challenge to amendment to Rule 9 of the Prevention
of Money Laundering (Maintenance of Records) Rules, 2005.
As per Rule 9, linking of Aadhaar with bank account is made
compulsory not only for opening a new bank account but even for
B existing bank accounts with a stipulation that if the same is not
done then the account would be deactivated, with the result that
the holder of the account would not be entitled to operate the
bank account till the time seeding of the bank account with
Aadhaar is done. This amounts to depriving a person of his
C property. This move of mandatory linking of Aadhaar with bank
account does not satisfy the test of proportionality. The test of
proportionality requires that a limitation of the fundamental rights
must satisfy the following to be proportionate: (i) it is designated
for a proper purpose; (ii) measures are undertaken to effectuate
the limitation are rationally connected to the fulfilment of the
D purpose; (iii) there are no alternative less invasive measures;
and (iv) there is a proper relation between the importance of
achieving the aim and the importance of limiting the right. [Para
433][487-D-F]
18.2 The Rules are disproportionate for the following
E reasons: (a) a mere ritualistic incantation of “money laundering”,
“black money” does not satisfy the first test; (b) no explanations
have been given as to how mandatory linking of every bank
account will eradicate/reduce the problems of “money
laundering” and “black money”; (c)there are alternative methods
F of KYC which the banks are already undertaking, the state has
not discharged its burden as to why linking of Aadhaar is
imperative. [Para 434][487-G-H; 488-A-B]
Ram Jethmalani & Ors. v. Union of India & Ors. (2011)
8 SCC 1 : [2011] 8 SCR 725; Lal Babu Hussein v.
G Electoral Registration Officer and Others (1995) 3 SCC
100 : [1995] 1 SCR 877 – relied on.
18.3 There may be legitimate State aim for such a move as
it aims at prevention of money laundering and black money.
However, there has not been a serious thinking while making
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 65

such a provision applicable for every bank account. Maintaining A

back account in today’s world has almost become a necessity.
The Government itself has propagated the advantages thereof
and is encouraging people to open the bank account making it
possible to have one even with Zero Balance under the Pradhan
Mantri Jan Dhan Yojana. The Government has taken various
B
measures to give a boost to digital economy. Under these
schemes, millions of persons, who are otherwise poor, are opening
their bank accounts. They are also becoming habitual to the good
practice of entering into transactions through their banks and
even by using digital modes for operation of the bank accounts.
Making the requirement of Aadhaar compulsory for all such and C
other persons in the name of checking money laundering or black
money is grossly disproportionate. There should have been a
proper study about the methods adopted by persons who indulge
in money laundering, kinds of bank accounts which such persons
maintain and target those bank accounts for the purpose of
D
Aadhaar. It has not been done. Thus the amendment to Rule 9,
by the Seventh Amendment Rules, 2017, in the present form, is
held to be unconstitutional. [Paras 435, 436][488-B-F]
19. Linking of Mobile Number with Aadhaar
By a Circular dated March 23, 2017, the Department of E
Telecommunications has directed that all licensees shall reverify
the existing mobile subscribers (pre-paid and post-paid) through
Aadhaar based e-KYC process. In fine, it amounts to mandatory
linking of mobile connections with Aadhaar, which requirement
is not only in respect of those individuals who would be becoming
mobile subscribers, but applies to existing subscribers as well. F
Not only such a circular lacks backing of a law, it fails to meet the
requirement of proportionality as well. It does not meet ‘necessity
stage’ and ‘balancing stage’ tests to check the primary menace
which is in the mind of the respondent authorities. There can be
other appropriate laws and less intrusive alternatives. For the G
misuse of such SIM cards by a handful of persons, the entire
population cannot be subjected to intrusion into their private lives.
It also impinges upon the voluntary nature of the Aadhaar
scheme. It is disproportionate and unreasonable state compulsion.
Every individual/resident subscribing to a SIM card does not
H
66 SUPREME COURT REPORTS [2018] 8 S.C.R.

A enjoy the subsidy benefit or services mentioned in Section 7 of

the Act. The Circular dated March 23, 2017 is declared as
unconstitutional. [Paras 437, 442][488-G; 491-D-F]
Lokniti Foundation v. Union of India & Anr. (2017) 7
SCC 155 – relied on.
B M.P. Sharma and 4 Others v. Satish Chandra Distt.
Magistrate, Delhi and 4 Others [1954] SCR 1077;
People’s Union for Civil Liberties (PDS matter) v. Union
of India & Ors. (2011) 14 SCC 331; (2010) 5 SCC
318; (2010) 13 SCC 45; State of Kerala & Ors. v.
C President, Parent Teachers Association SNVUP School
and Ors. (2013) 2 SCC 705 : [2013] 4 SCR 66 –
referred to.
Per Ashok Bhushan, J.
1. Whether requirement under the Aadhaar Act to give
D one’s biometric and demographic information is violative of
fundamental right of privacy.
1.1 Requirement under the Aadhaar Act to give one’s
demographic information
1.1.1 The demographic information includes information
E
relating to the name, date of birth, address and other relevant
information of an individual, as may be specified by regulations
for the purpose of issuing an Aadhaar number. There is also
injunction in Section 2(k) that demographic information shall not
include race, religion, caste, tribe, ethnicity, language, records
F of entitlement, income or medical history. Thus, demographic
information which are contemplated to be given in the Act are
very limited information. The Regulations have been framed
under Act, namely, Aadhaar (Enrolment and Update) Regulations,
2016. A perusal of Regulation 4 indicates that information which
shall be collected from individual are his name, date of birth, gender
G
and residential address. The additional information which can be
collected at the option of the individual is mobile number and e-
mail address. The information contemplated under Regulation 4
are nothing but information relating to identity of the person.
[Paras 112, 113, 114][562-D-E; 563-E-F]
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 67

1.1.2 Every person born on earth takes birth at a place at A

a time with a parentage. The identity of person from the time of
taking birth is an identity well known and generally every person
describes himself or herself to be son or daughter of such and
such person. Hence, it can be safely said that there cannot be a
reasonable expectation of privacy with regard to such information.
B
An individual in interaction with society or while interacting with
his close relatives naturally gives and reveals his several
information e.g. his name, age, date of birth, residential address,
etc. In giving of those information there is no reasonable
expectation of privacy. Thus, demographic information required
to be given in the process of enrolment does not violate any right C
of privacy. The right to identity is an essential component of an
individual in her relationship with the State. Aadhaar is
contemplated as one PAN INDIA identity, which is acceptable
proof of identity in every nook and corner of the country. There
is no expectation of right of privacy with regard to gender. This
D
right having been clearly recognised by this Court, expression
of those rights of self-identification cannot, in any manner, be
said to affect their right to privacy. With regard to transgenders
also no right of privacy is breached in giving the demographic
information. In so far as biometric information, ample justification
has been found which satisfied the three fold test as laid down in E
Puttaswamy case, which is equally applicable to transgender also.
[Paras 115, 116, 121, 123, 129][563-G; 564-B-C; 567-F; 568-A-
B; 571-C-D]
M.P. Sharma & Others v. Satish Chandra & Others 1954
AIR SC 300 : [1954] SCR 1077; Kharak Singh v. State F
of U.P. & Others AIR 1963 SC 1295 : [1964] SCR
332; National Legal Services Authority and Union of
India and others (2014) 5 SCC 438 – referred to.
Alan F. Westin in his work “Privacy and Freedom”;
Regina (Wood) v. Commissioner of Police of the G
Metropolis (2009) EWCA Civ 414: [2010] 1 WLR 123;
Katz v. United States 389 US 347 (1967); United States
v. Antonio Dionisio 35 L.Ed. 2D 67; Otis R. Bowen,
Secretary of Health and Human Services, et al. v.
Stephen J. Roy et al., 476 U.S. 693 (1986); Doris
McElrath v. Joseph A. Califano – referred to. H
68 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 1.2 Whether obtaining biometric information in context of

enrolment – breaches the right of privacy of individual or not?
1.2.1 The biometric information as referred to in Section
2(g) is required to be given in the process of enrolment by a
person. Biometric information means photographs, fingerprints,
B iris scan and other such biometric attributes of an individual as
may be specified by the regulations. Biometric information is of
physical characteristics of a person. A person has full bodily
autonomy and any intrusion in the bodily autonomy of a person
can be readily accepted as breach of his privacy. The biometric
data as referred to in Section 2(g) may contain biological attributes
C of an individual with regard to which a person can very well claim
a reasonable expectation of privacy but whether privacy rights
have been breached or not needs to be examined in the subject
context under which the informations were obtained. [Paras 130,
134][571-E; 574-D-E]
D 1.2.2 The provisions of Aadhaar Act are to be tested in
light of three-fold test as have been laid in Puttaswamy case. The
First requirement to be fulfilled is existence of law. Admittedly,
Aadhaar Act is a Parliamentary law, hence the existence of law is
satisfied. Mere existence of law may not be sufficient unless the
E law is fair and reasonable. The Aadhaar Act has been enacted
with an object of providing Aadhaar number to individuals for
identifying an individual for delivery of benefits, subsidies and
services. Several materials on the record reflect that in the
several studies initiated by the Government as well as the World
Bank and Planning Commission, it was revealed that food grains
F released by the Government for the beneficiaries did not reach
the intended beneficiaries due to the failure to establish identity.
The Law, i.e., Aadhaar Act, which has been brought to provide
for unique identity for delivery of subsidies, benefits or services
was a dire necessity, which decision was arrived at after several
G reports and studies. Aadhaar Act was, thus, enacted for a
legitimate State aim and fulfills the criteria of a law being fair and
reasonable. As regards the third test, i.e., test of proportionality,
it has to be kept in mind that the state is neither arbitrary nor of
an excessive nature beyond what is required in the interest of
public. The object of the Aadhaar Act was to provide for unique
H identity for purposes of delivery of benefits, subsidies and services
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 69

to the eligible beneficiaries and to ward of misappropriation of A

benefits and subsidies, ward of deprivation of eligible beneficiaries.
Biometric information which is to be obtained for enrolment are
not disproportionate nor the provisions of Aadhaar Act requiring
demographic and biometric information can be said to be not
passing three-fold test as laid down in Puttaswamy case. [Paras
B
137, 138, 142, 143, 145][575-F-H; 576-E; 578-E-F; 580-B-D; 581-
G-H; 582-A-B]
2. Collection, storage, retention, use, sharing and
surveillance.
2.1 Whether collection of data of residents, its storage, C
retention and use violates fundamental right of privacy?
2.1.1 The Aadhaar Act provides complete architecture
beginning with enrolment. The enrolment means process to
collect demographic and biometric information from individuals
by enroling agencies. The enroling agencies have to set up D
enrolment centers and have to function in accordance with the
procedure specified by UIDAI. Section 8 contemplates for
authentication for Aadhaar number which authentication was done
by authority. When a request is made for identification by any
requesting entity in respect to biometric or demographic
information of aadhaar number holder, the authority may engage E
one or more entities to establish and maintain Central Identity
Data Repository (CIDR). Section 28 provides for the security
and confidentiality of information. Section 29 provides for not
sharing information collected or created under this Act. Section
30 itself contemplates that biometric information are sensitive F
personal data or information. There are strict conditions
envisaged in Section 33 for disclosure of information. Chapter
VII of the Act deals with the offences and penalties for
impersonation at the time of enrolment penalty for disclosing
identity information is provided under Sections 34 to 37. [Paras
146, 147, 148, 149][582-D-F; 583-G-H; 584-E, F-G] G
2.1.2 Various modes of authentication are provided in
Regulation 4 of Authentication Regulations 2016, which are:
Demographic authentification; One time pin-based authentication;
Biometric-based authentif ication and Multi-factor
H
70 SUPREME COURT REPORTS [2018] 8 S.C.R.

A authentification. A requesting entity may choose suitable mode

of authentication for particular function or business function as
per its requirement. The Aadhaar (Data Security) Regulations,
2016 contain detail provisions to ensuring data security.
Regulation 3 deals with measures for ensuring information
security. Regulation 5 provides security obligations of the
B
agencies, consultants, advisors and other service providers
engaged by the Authority for discharging any function relating to
its processes. The Aadhaar (Sharing of Information) Regulations,
2016 also contain provisions providing for restrictions on sharing
identity information. Sub-Regulation (1) of Regulation 3 provides
C that core biometric information collected by the Authority under
the Act shall not be shared with anyone for any reason whatsoever.
Sharing of Information Regulations, 2016 also contain various
other restrictions. The scheme of the Aadhaar Act indicates that
all parts of the entire process beginning from enrolment of a
resident for allocation of Aadhaar number are statutory regulated.
D
The Authentication Regulations, 2016 also limit the period for
retention of logs by requesting entity. [Paras 153, 156-160] [586-
E; 587-B-E; 588-B-C]
2.1.3 The residents’ information in CIDR are also permitted
to be updated as per provisions of the Aadhaar (Enrolment and
E Update) Regulations, 2016. An over view of the entire scheme of
functions under the Aadhaar Act and Regulations made
thereunder indicate that after enrolment of resident, his
informations including biometric information are retained in
CIDR though in encrypted form. The major function of the
F authority under Aadhaar Act is authentication of identity of
Aadhaar number holder as and when requests are made by
requesting agency, retention of authentication data of requesting
agencies are retained for limited period. There are ample
safeguards for security and data privacy in the mechanism. [Para
161][588-G-H; 589-A]
G 2.1.4 The preponderance of authorities of different
countries on the subject of retention of data is that retention of
personal data effecting personal life of an individual may interfere
in his right of privacy and the State can justify its retention subject
to proportionality and subject to there being sufficient safeguards
H to personal information is not retained for longer than is required.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 71

Reverting back to the Aadhaar Act, it is clear that requesting A

entity as well as authority are required to retain authentication
data for a particular period and thereafter it will be archived for
five years and thereafter authentication data transaction shall be
deleted except such data which is required by the Court in
connection with any pending dispute. The data which is retained
B
by the entity and authority for certain period is minimal
information pertaining to identity authentication only no other
personal data is retained. Thus, provisions of Aadhaar Act and
Regulations made thereunder fulfill three fold test as laid down
in Puttaswamy case, hence, the storage and retention of data does
not violate fundamental right of privacy. [Paras 180, 181][595-C- C
F]
G. Sundarrajan v. Union of India and Others (2013) 6
SCC 620 : [2013] 8 SCR 631 – relied on.
AB v. Her Majesty’s Advocate [2017] UK SC 25;
Madhewoo v. State of Mauritius – referred to. D
3. Whether Section 7 of Aadhaar Act is unconstitutional?
Whether right to food, shelter etc. envisaged under Article 21
shall take precedence on the right to privacy of the beneficiaries?
3.1 Article 38 provides that State shall strive to promote
the welfare of the people by securing and protecting as effectively E
as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life. It
further provided that the State shall, in particular, strive to
minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different F
areas or engaged in different vocations. After enforcement of the
Constitution almost all the Governments worked towards the
object of elimination of poverty and to empower marginal/poor
section of the society. The endeavour of the Government was
always to frame policies keeping in view the “little Indian” who G
is in the centre of all policies and governance. [Paras 200,
201][604-A-C]
3.2 Section 7 is an enabling provision which empowers the
State Government to require that such individual undergo
authentication for receipt of a subsidy, benefit or service but
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72 SUPREME COURT REPORTS [2018] 8 S.C.R.

A neither Section 7 nor orders issued by the Central Government

and State Government can be read that in the event authentication
of a person or beneficiary fails, he is not to be provided the
subsidies and benefits or services. The provision is couched as
an enabling provision but it cannot be read as a provision to negate
giving subsidies, benefits or services in the event of failure of
B
authentication. Circular dated 24.10.2017 which fills a gap and is
a direction facilitating delivery of benefits and subsidies does not
breach by provisions of the Act. [Para 219][611-G-H; 612-A-B]
Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and others (1981) 1 SCC 608 : [1981]
C 2 SCR 516 – relied on.
PUCL v. Union of India (2011) 14 SCC 331; PUCL v.
Union of India (2013) 14 SCC 368 – referred to.
Otis R. Bowen, Secretary of Health and Human Services,
D et al. v. Stephen J. Roy et al., 476 US 693 (1986);
Buchanan v. Wing 664 N.Y. 2d 865; Doris McElrath v.
Joseph A. Califano, Jr., Secretary of Health, Education
and Welfare, 615 F.2d 434 – referred to.
3.3 No doubt, there has been denial to few persons due to
E failure of authentication. There is ample material on record to
indicate that prior to enforcement of Aadhaar Scheme there had
been large number of denial of benefits and subsidies to real
beneficiaries due to several reasons. When such scheme of
Government is implemented, it is not uncommon that there may
be shortcomings and some denial. There is no material on record
F to indicate that as compared to non-receipt of eligible beneficiaries
prior to enforcement of the Act, there is increase of failure after
the implementation of the Act. It cannot be accepted that few
cases of exclusion as pointed out by the petitioners makes Section
7 itself arbitrary and violative of Articles 14 and 21. The
G respondents are still ready to take remedial measures to ensure
that there is no denial of subsidies to deserving persons. [Para
220][612-C-F]
State of Uttar Pradesh and Another v. Zila Parishad,
Ghaziabad and Another (2013) 11 SCC 783; Ex.
Armymen’s Protection Services P. Ltd. v. Union of India
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 73

(UOI) and Ors., (2014) 5 SCC 409 : [2014] 3 SCR 359 A

– referred to.
3.4 Whether Aadhaar scheme and its authentication for
benefits, subsidies and services militate against Article 243G and
hence are ultra vires to the Constitution?
Article 243G is an enabling provision, which enable the State B
Legislature, by law, to endow the Panchayats with such powers
and authorities as may be necessary to enable them to function
as institutions of self-government. State is fully competent to make
laws to authorise the Panchayats to take over all the matters
enumerated in Eleventh Schedule. The Aadhaar Act is an Act C
enacted by Parliament, which is referable to Entry 97 of List I.
The Aadhaar Act has been enacted to provide for efficient,
transparent, and targeted delivery of subsidies, benefits and
services, the expenditure for which is incurred from the
Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such individuals D
and for matters connected therewith. The Act, thus, has been
enacted to regulate the expenditure, which is incurred from the
Consolidated Fund of India. No conflict between the Aadhaar Act
and any law, which may be enacted by State under List II is seen.
Even if any conflict is supposed, the Doctrine of Pith and Substance E
has to be applied to find out nature of two legislations. In Pith
and Substance, the Aadhaar Act cannot be said to be entrenching
upon any law, which may be made by the State under Item No.5 of
List II. Aadhaar Act is not ultra vires to Article 243G and Eleventh
Schedule to the Constitution. [Paras 230, 231][618-D-G; 620-F-G]
F
4. Whether Section 29 of the Aadhaar Act is liable to be
struck down?
4.1 The ground to challenge Section 29 is that it permits
sharing of identity information which amount to breach of Right
of Privacy. Section 29 is a provision, which contains restrictions G
on sharing information as is clear from the heading of the section.
Section 29 sub-section (1) contains prohibition on sharing of any
core biometric information collected or created under this Act.
Sub-section (2) permits sharing of identity information, other than
core biometric information, only in accordance with the provisions
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74 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of this Act and in such manner as may be specified by regulations.

Further sub-section (3) prohibits requesting entity to use identity
information for any purpose other than that specified to the
individual or to disclose any information without the consent of
individual. Sub-section (4) provides that no Aadhaar number or
core biometric information shall be published, displayed or posted
B
publicly, except for the purposes as may be specified by
regulations. The attack on Section 29 that it permits sharing of
information is thus wholly misconceived. When a person consents
about sharing of his identity information, he cannot complain
breach of Privacy Right. When an Act or Regulation regulates
C and controls sharing of the information, the provision is regulatory
and has been engrafted to protect individual’s Privacy Right.
[Paras 234-235][622-B-C; 623-A-E]
4.2 The provision under Section 29 which permits sharing
of identity information except core biometric information in
D accordance with the Act and Regulations cannot be said to be
disproportionate nor unreasonable. Legislature can very well
enumerates circumstances and conditions where sharing of
information becomes necessary. One of the circumstances where
sharing of the information is specifically engrafted in sub-
section(2) of Section 33, which provides that nothing contained
E in sub-section (3) of Section 29 shall apply in respect of any
disclosure of information, including identity information or
authentication records, made in the interest of national security
in pursuance of a direction of an officer not below the rank of
Joint Secretary to the Government of India. Thus, the
F circumstances which can contemplate for sharing information is
reasonable and proportionate. The provisions of Section 29 is
constitutional and does not deserves to be struck down. [Para
236][623-G-H; 624-A-B]
5. Whether Section 33 is constitutional ?
G 5.1 It is not correct to say that Section 33 is unconstitutional
since it provides for the use of the Aadhaar data base for Police
verification which violates the protection against self-
incrimination as enshrined under Article 20(3) of the Constitution
of India. Sub-section (1) of Section 33 contains an ample restriction
H in respect of any disclosure information which can be done only
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 75

in pursuance of an order of the court not inferior to that of a A

District Judge. The restriction in disclosure of information is
reasonable and has valid justification. The authority whose duty
is to safeguard the entire data has to be heard before passing an
order by the court which amply protects the interest of a person
whose data is to be disclosed. [Paras 238, 239][625-B-D]
B
5.2 Section 33 sub-section (2) contains two safeguards.
Firstly, disclosure of information is to be made in the interest of
national security and secondly, in pursuance of a direction of an
officer not below the rank of Joint Secretary to the Government,
who is specially authorised in this behalf by an order of the Central
Government. National security, thus, has to be determined by a C
higher officer who is specifically authorised in this behalf. The
power given under Section 33 to disclose information cannot be
said to be disproportionate. The disclosure of information in the
circumstances mentioned in Section 33 is reasonable and in the
public interest. Section 33 is constitutional. [Paras 240, 245, D
248][625-F; 628-B-C; 630-A-B]
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808 : [1962] SCR 10 – relied on.
Selvi and others v. State of Karnataka 2010(7) SCC
263 : [2010] 5 SCR 381 – held inapplicable. E

6. Whether Section 47 of the Aadhaar Act is

unconstitutional?
Special Acts are enacted for serving special objects towards
offences under the Act. The initiation and prosecution of offences F
under the Special Act are kept by the specified authority to keep
the initiation and prosecution in the hands of the authorities under
the Special Act which acts as deterrent and prosecutions are
brought to its logical end. The objective of such provisions is to
discourage frivolous and vexatious complaints. Section 47 can
be invoked by the authority on its own motion or when it receives G
a complaint from a victim. The authority i.e. UIDAI has varied
powers and functions as enumerated in Section 23 of the Act. It
is the authority who is most entrusted in ensuring that the
provisions of the Act are implemented in accordance with the
Act and offenders should be punished. With regard to an offence
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76 SUPREME COURT REPORTS [2018] 8 S.C.R.

A which falls within the definition of ‘offences’ a victim can always

file complaint or lodge an F.I.R. Section 46 of the Aadhaar Act
clearly provides that the penalties under the Aadhaar Act shall
not interfere with other punishments. The limitation as contained
in Section 47 in permitting taking cognizance of any offence
punishable under Aadhaar Act only on a complaint made by the
B
authority or any officer or person authorised by it, has legislative
purpose and objective. Thus, there is no unconstitutionality in
Section 47 of the Aadhaar Act. [Paras 256, 258, 261, 263][635-C-
D; 636-A-B; 637-B-C; 638-C-D]
State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 :
C [2014] 9 SCR 1063 – relied on.
Rajkumar Gupta v. Lt.Governor, Delhi and Others,
(1997) 1 SCC 556 : [1962] SCR 10 – referred to.
7. Whether Section 57 of Aadhaar Act is unconstitutional?
D 7.1 In the three-fold test evolved in Puttaswamy case,
proportionality is the third component which ensures that the
means which are adopted by the legislature are proportional to
the object and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the guarantee against
E arbitrary state action because it ensures that the nature and quality
of the encroachment on the right is not disproportionate to the
purpose of the law. [Paras 273, 274][643-G; 644-G]
Modern Dental College and Research Centre and Others
v. State of Madhya Pradesh and Others (2016) 7 SCC
F 353; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and
Others (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235;
State of Madras v. V.G. Row AIR 1952 SC 196 : [1952]
SCR 597; Om Kumar and Others v. Union of India
(2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693 – relied
on.
G
R v. Oakes (1986) 26 DLR 2001; John Davis v. State
of Mississippi 394 US 721 (1969); United States v.
Antoine Jones 132 S.Ct. 945 (2012); S. and Marper v.
The United Kingdom 2008 (48) EHRR 50; Regina
(Catt) v. Association of Chief Police Officers of
H England, Wales and Northern Ireland and another
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 77

(2015) 2 WLR 664 – (2015) UKSC 9; United States v. A

Antoine Jones 132 S.Ct. 945 (2012); Roman Zakharov
v. Russia; Digital Rights Ireland Ltd. v. Minister for
Communications [2015] QBECJ 127; Tele2 Sverige
AB v. Post-och telesyrelsen; Vernonia School District v.
Wayne Acton 515 US 646, 132 L.Ed. 2D 564; Board
B
of Education of Independent School District v. Lindsay
Earls 536 US 822=153 L.Ed.2d. 735; Michael Schwarz
v. Stadt Bochum in its judgment dated 17.10.2013 –
referred to.
7.2 Whether least intrusive test cannot be applied to judge
the proportionality of Aadhaar Act? There are several reasons C
due to which least intrusive test cannot be insisted. For applying
the least intrusive test, the Court has to enter comparative
analysis of all methods of identification available, which need to
be examined with their details and compared. Court has to arrive
at finding as to which mode of identity is a least intrusive. D
Comparison of several modes of identity and to come to a decision,
which is least intrusive is a matter, which may be better left to
the experts to examine. Further, there are no proper pleadings
and material with regard to other modes of identification, which
could have been adopted by the State, to come to a definite
conclusion by this Court. Section 57 begins with the phrase E
“nothing contained in this Act shall prevent the use of Aadhaar
number.....” for establishing the identity of an individual for any
purpose. Section 57 reveals following concepts and ideas, which
can be para phrased in following manner:- (a) Nothing contained
in this Act shall prevent the use of Aadhaar number for identifying F
the identity of an individual for any purpose. (b) Whether by the
State or body corporate or private person. (c) Pursuant to any
law, for the time being in force or any contract to this effect. [Paras
280, 281][647-G-H; 648-A-B, C-E]
7.3 The basic theme of the Aadhaar Act to implement the G
Aadhaar programme was for purposes of disbursement of
subsidies, benefits or services to individuals entitled for the same.
By various notifications issued under Section 7, the Government
has made applicable Aadhaar authentication for large number of
schemes namely 133 in number. The idea behind Section 57 is
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78 SUPREME COURT REPORTS [2018] 8 S.C.R.

A that Aadhaar is liberated from the four corners of the Act and it
may not be confined to use under Section 7 alone. The Act does
not prohibit the use of Aadhaar for any other purpose. The law
providing for use of Aadhaar for any purpose should be rational
and proportional. There has to be some object to be achieved by
use of Aadhaar, in a particular case, the legislature has ample
B
power to provide for legislative scheme by an enactment making
use of Aadhaar and use of Aadhaar has to be backed by a valid
law. In event, it is accepted on the strength of Section 57 that a
State or body corporate or person, on the basis of any contract to
this effect, are permitted to use Aadhaar it shall be wholly unguided
C and uncontrolled, which is prone to violate the right of privacy.
Section 57 makes use of Aadhaar on two basis. Firstly, “pursuant
to any law, for the time being in force” and secondly “any contract
to this effect”. When the legislature uses the phrase “pursuant
to any law, for the time being in force”, obviously the word law
used in Section 57 is a law other than Section 57 of Aadhaar Act,
D
2016 and the Regulations framed thereunder. When any law
permits user of Aadhaar, its validity is to be tested on the anvil of
three-fold test as laid down in Puttaswamy case, but permitting
use of Aadhaar on any contract to this effect, is clearly in violation
of Right of Privacy. A contract entered between two parties, even
E if one party is a State, cannot be said to be a law. Thus, Section
57 in so far as it permits use of Aadhaar on “any contract to this
effect” is clearly unconstitutional and deserves to be struck down.
Section 57 has to be read only to mean that it clarifies that nothing
contained in Aadhaar Act shall prevent the use of Aadhaar for
establishing the identity of an individual for any purpose, in
F
pursuant to any law. Section 57 itself is not a law, which may
permit use of Aadhaar for any purpose. There has to be a valid
law in existence, which should also pass the three-fold test as
laid down in Puttaswamy case for making provision for use of
Aadhaar. Section 57, to the extent, which permits use of Aadhaar
G by the State or any body corporate or person, in pursuant to any
contract to this effect is unconstitutional and void. Thus, the last
phrase in main provision of Section 57, i.e. “or any contract to
this effect” is struck down. [Para 282, 283, 284][648-E-H; 649-
A-G]
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 79

8. Whether Section 59 is void or unconstitutional? A

8.1 The expression ‘anything done or any action under
the Resolution’ is wide enough to cover all the actions which
UIDAI executed as Department of Central Government. Section
59 seeks to save and continue under the said Act what was done
under the executive scheme. The submission that breach of B
fundamental right cannot be retrospectively cured is incorrect.
The last phrase of Section 59 uses the expression “shall be
deemed”, this expression clearly indicates creation of fiction with
the object of providing legislative support to the action taken
before the Act. That seeks to continue the entire architecture of
Aadhaar which established under the Government Resolution C
dated 28.01.2009. As a result of deeming provision all the actions
under the said scheme shall be deemed to have been done under
the Act and not under the said notification. [Para 287][650-G-H;
651-A-B]
M/s. West Ramnad Electric Distribution Co. Ltd. v. The D
State of Madras and another AIR 1962 SC
1753 : [1963] SCR 747 – relied on.
8.2 A statute creates a legal fiction to achieve a legislative
purpose. Legislature has often created legal fiction to save several
actions which had happened prior to enactment. Parliamentary E
legislative intent of Section 59 is to save all actions taken by
Central Government under the notification dated 28.01.2009 and
notification dated 12.09.2015 deeming the same to have been
validly done under the Aadhaar Act by creating a legal fiction.
The intention to save all actions taken under the aforesaid two F
notifications and treat them to have done under that Act is clear,
it is the purpose and object of Section 59. Legislature by legislative
device can cover actions taken earlier while creating any legal
fiction which has actually been done by Section 59. [Paras 301,
302, 305][657-D, F-G; 661-D-F]
G
Hari Singh and others v. The Military Estate Officer
and another (1972) 2 SCC 239 : [1973] 1 SCR 515 –
followed.
Bishambhar Nath Kohli and others v. State of Uttar
Pradesh and others AIR 1966 SC 573 : [1966] SCR
H
80 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 158; Rajahmundry Electric Supply Corporation Ltd. v.

State of Andhra Pradesh AIR 1954 SC 251 : [1954]
SCR 779; Krishna Chandra Gangopadhyaya and
others v. The Union of India and others (1975) 2 SCC
302 : [1975] 0 Suppl. SCR 151; ITW Signode India
Ltd. v. Collector of Central Excise (2004) 3 SCC 48 :
B
[2003] 5 Suppl. SCR 751; Nar Bahadur Bhandari and
another v. State of Sikkim and others (1998) 5 SCC 39
: [1998] 3 SCR 421; The State of Mysore and another
v. d. Achiah Chetty, Etc. (1969) 1 SCC 248 : [1969] 3
SCR 55; State of Karnataka v. State of Tamil Nadu and
C others (2017) 3 SCC 362 : [2016] 8 SCR 499 – relied
on.
East End Dwelling Co.Ltd. And Finsury Borough
Council 1952 AC 109 – referred to.
9. Whether Collecting the identity information of children
D between 5 to 18 years is unconstitutional?
Section 5 of the Act provides that the Authority shall take
special measures to issue Aadhaar number to women, children,
senior citizens, persons with disability, unskilled and unorganised
workers, nomadic tribes or to such other persons who do not
E have any permanent dwelling house and such other categories of
individuals as may be specified by regulations. The Aadhaar
(Enrolment and Update) Regulations, 2016 contains some special
measures. Regulation 5 provides for information required for
enrolment of children below five years of age. For children below
F five, no core biometric informations are captured and only
biometric information of any one parent/guardian is captured. The
objection raised by petitioners is with regard to children between
5 to 18 years on the ground that they being minors, parental
consent is not taken. For Aadhaar enrolment, for verification of
information consent is obtained from the person submitting for
G enrolment. Thus, the enrolment for Aadhaar number is on consent
basis. Although, it is different matter that for the purpose of
obtaining any benefit or service, a person is obliged to enrol for
Aadhaar. The petitioners are right in their submissions that for
enrolment of a children between 5 and 18 years, there has to be
H consent of their parents or guardian because they themselves
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 81

are unable to give any valid consent for enrolment. Thus, parental A
consent have to be read in Regulation 4 in so far as children of 5
to 18 years are concerned so that the provision in reference to
children between 5 to 18 years may not become unconstitutional.
[Paras 307, 308] [662-D-F; 663-D-F]
10. Whether Rule 9 as amended by the Prevention of B
Money-Laundering (Second Amendment) Rules, 2017 is
unconstitutional?
10.1 The PMLA, 2002 has been enacted to prevent money-
laundering and to provide for confiscation of property derived
from, or involved in, money-laundering and for matters connected C
therewith or incidental thereto. The siphoning away of huge
volumes of money from normal economic growth poses a real
danger to the economics and affects the stability of the global
market which also empowers corruption organised crime.
Proceeds of money-laundering are disguised to acquire properties
and other assets or to make investments. It is inherent in the D
activity of money-laundering to keep the entire process secret.
The Parliament with the objectives outlined in the international
declaration enacted the PMLA Act. [Paras 309, 311][664-C; 667-
D-E]
10.2 A perusal of the Second Amendment Rules, 2017 E
indicates that the State has sought to make the provisions of PMLA
more robust and ensure that the ultimate object of the Act is
achieved. Aadhaar Act, 2016 having been enacted with effect from
01.07.2016, it was decided to get the accounts verified by Aadhaar.
Amended Rules help all concerned to detect fictitious, ghost and F
benami accounts. The object of the PMLA and the definition of
beneficial owner Act seeks to traverse behind the corporate veil
of shell companies and spurious Directors in order to ascertain
the real natural persons controlling the accounts in the reporting
entities. The Amendment Rules applicable to reporting entities
and the legitimate aim sought to be achieved by the State that is G
conclusive identification of a natural person or the beneficial owner.
The statutory rules cast an obligation on all account holders to
get their identity verified by Aadhaar mechanism and those who
are already holding account in the reporting entity they are
required to submit the Aadhaar number or proof of their applied H
82 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Aadhaar identity. The object of inserting the Rule is to make it

possible to weed out fake and duplicate PANs and false bank
accounts. The Second Amendment Rules are step in direction to
cure the menace of fake bank accounts held by the shell companies
in the name of dummy directors, money laundering, terror
financing etc. Aadhaar number is required to be given at the time
B
of opening of the account based relationship and not for every
transaction conducted by an account holder of the bank. Those
who have already existing accounts are required to submit only
once their Aadhaar number for verification. The requirement of
Aadhaar number being given only for once is not any cumbersome
C or undue burden on an account holder and is a proportionate
measure. For non-submission of Aadhaar number and PAN only
consequence which is contemplated by sub-rule (c) is that account
shall cease to be operational. The account remains belonging to
the account holder and the amount in the account is only his
amount and there is no deprivation of the property of account
D
holder. Under the banking rules and procedures, there are
several circumstances where account becomes un-operational.
A non-operational account also is an account which belongs to
the account holder and amount laying in the non-operational
account is neither forfeited by the bank nor taken out from the
E said account. Further, account is ceased operational only till the
time Aadhaar number and PAN is submitted. The consequences
provided is only to effectuate the purpose of the Act and the Rules
i.e. account be verified by Aadhaar mechanism. It is not the intent
to deprive the account holder of the amount lying in the account.
Thus, Rule 9(17)(c) does not violate right under Article 300A.
F
Aadhaar number providing for verification of an account also
cannot be held to be violating right under Article 21. The reporting
entity i.e. banks and financial institutions under various statutes
are required to provide information of a bank account to different
authorities including income tax authority, account verification
G by Aadhaar is not for the purpose of keeping a track on the
transaction done by an individual. Aadhaar number has to be given
only once for opening of the account or for verification of the
account and transactions are not to be made on the basis of
Aadhaar verification each time. Rules cannot be held in any
manner violating Sections 3, 7 and 51. The rules provide for use
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 83

of Aadhaar for verification of bank account by law as contemplated A

by Section 57 of the Aadhaar Act. Rule 9 as amended by PMLA
(Second Amendment) Rules, 2017 is not unconstitutional and does
not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution
and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as
amended is not ultra vires to PMLA Act, 2002. [Paras 315, 316,
B
320, 321, 324][677-D-G; 678-A-C, F-H; 679-A-C; 680-A; 681-
C-D]
Bank Mellat v. Her Majesty’s Treasury (2013) UKSC 39 –
referred to.
11. Circular dated 23.03.2017 issued by Ministry of C
Communications, Department of Telecommunications
11.1 By circular dated 23.03.2017, all licensees were
directed to re-verify all existing mobile subscribers (prepaid and
postpaid) through Aadhaar based e-kyc process. The circular was
addressed by the Ministry of Communications, Department of D
Telecommunications to all Unified Licensees/Unified Access
Service Licensees/Cellular Mobile Telephone Service Licensees
with subject: implementation of orders of Supreme Court
regarding 100% E-KYC of existing subscribers. The circular
directing the licensees to mandatorily verify existing sim
subscribers in turn resulted in mobile telephone service licensees E
directing the subscribers to get their sim seeded with Aadhaar.
Repeated messages and directions have been issued by Cellular
Mobile Telephone Service operators. Compulsory seeding of
Aadhaar with mobile numbers has to be treated to be an intrusion
in Privacy Right of a person. Any invasion on the Privacy Right of F
a person has to be backed by law as per the three-fold test
enumerated in Puttaswamy case. Existence of a law is the
foremost condition to be fulfilled for restricting any Privacy Right.
[Pars 325, 327, 328][681-E-F; 682-C-D; 683-C-E]
11.2 The law as explained in Article 13(3) has to be applied G
for finding out as to what is law. Article 13(3)(a) gives an inclusive
definition of law in following words:- (a) “law” includes any
Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law. The
circular dated 23.03.2017 at best is only an executive instruction
issued on 23.03.2017 by the Ministry of Communications, H
84 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Department of Telecommunications. The circular does not refer

to any statutory provision or statutory base for issuing the circular.
The recommendations of TRAI are only recommendations and
the mere fact that circular dated 23.03.2017 was issued after the
recommendation was sent by TRAI, circular dated 23.03.2017
does not acquire any statutory character. Circular dated
B
23.03.2017 thus cannot be held to be a law within the meaning of
Part III of the Constitution. There cannot be any dispute to the
right of the Central Government to part with exclusive privilege
in favour of any person by granting license on such a condition
and in consideration of such terms as it thinks fit. But mere
C issuing an instruction to the licensees to adopt mandatory process
of e-KYC by Aadhaar verification in no manner exalt the
instructions or directives as a law. Circular dated 23.03.2017,
thus, cannot be held to be a law and direction to re-verification of
all existing mobile subscribers through Aadhaar based e-KYC
cannot be held to be backed by law, hence cannot be upheld.
D
[Paras 329, 330, 337, 342][683-E-G; 687-A-B; 688-F-G]
Bagalkot Cement Co. Ltd. v. R.K. Pathan and Others
AIR 1963 SC 439 : [1962] Suppl. SCR 697; Sukhdev
Singh and Others v. Bhagatram Sardar Singh
Raghuvanshi and Another (1975) 1 SCC 421 : [1975]
E 3 SCR 619; Lily Kurian v. Sr. Lewina and Others (1979)
2 SCC 124 : [1979] 1 SCR 820; Alpana V. Mehta v.
Maharashtra State Board of Secondary Education and
Another (1984) 4 SCC 27; St. Johns Teachers Training
Institute v. Regional Director, National Council for
F Teacher Education and Another (2003) 3 SCC 321 :
[2003] 1 SCR 975 – held inapplicable.
Lokniti Foundation v. Union of India and Another
(2017) 7 SCC 155 – distinguished.
Union of India and Another v. Association of Unified
G Telecom Service Providers of India and Others (2011)
10 SCC 543 : [2011] 14 SCR 657 – referred to
12. Whether Aadhaar Act is a Money Bill and decision of
Speaker certifying it as Money Bill is not subject to Judicial
Review of this Court?
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 85

12.1 Article 110(3) gives finality to the decision of the A

Speaker of the House of the People on question as to whether a
Bill is Money Bill or not. The word occurring in sub-article (3) of
Article 110 are “shall be final”. Article 122(1) puts an embargo
on questioning the validity of any proceeding in the Parliament
on the ground of any alleged irregularity or procedure. The
B
Constitution uses different expressions in different articles like
“shall be final”, “shall not be questioned”, “shall not be
questioned in any Court of Law” etc. The finality attached to the
decision of the Speaker under Article 110(3) does not inhibit the
Court in exercising its Judicial Review. [Paras 348, 351][691-F-
G; 695-B] C
Kihoto Hollohan v. Zachillhu and Others (1992) Supp.
2 SCC 651 : [1992] 1 SCR 686; Raja Rampal v. Hon’ble
Speaker, Lok Sabha and Others (2007) 3 SCC 184 :
[2007] 1 SCR 317 – relied on
12.2 All Bills are required to be passed by both Houses of D
Parliament. Exception is given in case of Money Bills and in the
case of joint sitting of both houses. When a Bill does not fulfill
the essential constitutional condition under Article 110(1), the
said requirement will not evaporate only on certification by
Speaker. The decision of Speaker certifying the Bill as Money
Bill is not only a matter of procedure and in event, any illegality E
has occurred in the decision and the decision is clearly in breach
of the constitutional provisions, the decision is subject to Judicial
Review. [Para 359][704-D-E, F-H]
Mohd. Saeed Siddiqui v. State of Uttar Pradesh and
Another (2014) 11 SCC 415; Yogendra Kumar Jaiswal F
and Others v. State of Bihar and Others (2016) 3 SCC
183 – not correct law.
12.3 A condition for receipt of a subsidy, benefit or service
for which the expenditure is incurred from, or the receipt
therefrom forms part of, the Consolidated Fund of India, has been G
provided by Section 7, i.e. undergoing of an individual to an
authentication. The Preamble of the Act as well as objects and
reasons also indicate that the Act has been enacted to provide
for, as a good governance, efficient, transparent, and targeted
delivery of subsidies, benefits and services, the expenditure for
which is incurred from the Consolidated Fund of India, to H
86 SUPREME COURT REPORTS [2018] 8 S.C.R.

A individuals residing in India through assigning of unique identity

numbers to such individuals and for matters connected therewith
or incidental thereto. Thus, the provisions of the Act is clearly
covered by Article 110(1)(c) and (e). [Para 361][705-G-H; 706-
A-B]
B Binoy Biswam v. Union of India and others (2017) 7
SCC 59 : [2017] 7 SCR 1 – relied on.
13. Whether Section 139-AA of the Income Tax Act, 1961
is unconstitutional in view of the Privacy judgment in Puttaswamy
case?
C 13.1 Section 139-AA was clearly enacted to fulfill the
legitimate State interest. Section 139-A which came into effect
w.e.f. 01.04.1989 provide for Permanent Account Number (PAN)
and the provision also provided that statutory mandatory
provisions as to when “every person” shall quote such number
(PAN number) for various purposes as enumerated in Section
D 139A. Introduction of Section 139-AA is an extension and
implication of Section 139A. The new Section 139-AA in the
Income Tax Act seeks to remove bogus PAN cards by linking
with Aadhaar, expose shell companies and thereby curb the
menace of black money, money laundering and tax evasion.
E Linking of PAN with Aadhaar will ensure that duplicate and fake
PAN cards which are used for the purpose of tax evasion will be
eliminated and is one of the many fiscal measures to eliminate
black money from the system. Section 139-AA also cannot be
said to be disproportionate. The section has been enacted to
achieve the legitimate State aim. The means which are sought
F to be achieved by such enactment cannot be said to be
disproportionate in any manner. Section 139-AA is a required
first step to weed out fake PANs for individuals; it is perfectly
acceptable for the legislature to weed out fake PANs for other
tax-paying entities at a later stage.[Paras 373, 374, 375][715-C,
D-E, F, H; 716-A-B]
G
Shayara Bano v. Union of India (2017) 9 SCC 1
: [2017] 7 SCR 797; Namit Sharma v. Union of India
(2013) 1 SCC 745 : [2013] 13 SCR 1 – relied on.
13.3 Section 139-AA targets only individual assessees
and not every other tax-paying entity. The law does not have to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 87

provide for complete coverage of tax-payers who may be indulging A

in financial fraud but may envisage ‘degrees of harm’ and act on
that basis. In this context, the Aadhaar number is being mandated
for all individual assessees. This is applicable to natural persons
as well as persons who together constitute legal persons (e.g.
Partners in a partnership, members of a company etc.) and hence
B
provides significant coverage to weed out duplicate PANs and
hence reduce the incidence of financial and tax frauds through
these means. Aadhaar’s inclusion into PAN is meant to curb tax
evasion, sham transactions, entry providers which are rampantly
carried out on account of bogus PANs. Aadhaar’s unique de-
duplication based on biometric identification has been hailed as C
the most sophisticated system by the World Bank. Inclusion of
Aadhaar into PAN eliminates the inequality between honest tax
payers and non-compliant, dishonest ones who get away without
paying taxes. Inclusion of Aadhaar into PAN promotes rather than
negates equality. It bolsters equality and is consistent with Article
D
14. In result, Section 139-AA is fully compliant of three-fold test
as laid down in Puttaswamy’s case. Section 139-AA, thus does
not breach fundamental Right of Privacy of an individual and
cannot be struck down on that ground. [Paras 376, 377][716-D-G]
K.S. Puttaswamy v. Union of India [2017] 10 SCR 569 :
(2017) 10 SCC 1 – followed. E
14. Whether Aadhaar Act violates the Interim Orders
passed by this Court in Writ Petition (C) No. 494 of 2012?
The Aadhaar Act, 2016 gives legislative backing to the
Aadhaar Scheme. The Act contains specific provisions prohibiting
disclosure of core biometric information collected in Aadhaar F
enrolment. Thus, Aadhaar Act cannot be struck down on the
ground that it is in violation of interim orders passed by this Court
in Writ Petition (C) No. 494 of 2012. [Para 383, 384][719-D-E,
F-G]
Per Dr. D. Y. Chandrachud, J. G
1.1 Whether under Article 110(3), the decision of the
Speaker of the Lok Sabha, that a Bill is a Money Bill, is immune
from judicial review.
1.1.1 Article 109 provides for a special procedure in respect
of Money Bills. It provides that a Money Bill shall not be H
88 SUPREME COURT REPORTS [2018] 8 S.C.R.

A introduced in the Council of States, the Rajya Sabha. After a Money

Bill is introduced in the Lok Sabha and passed by it, the Bill has
to be transmitted to the Rajya Sabha for its recommendations.
Article 110(4) provides that when a ‘Money Bill’ is transmitted
from the Lower House to the Upper House, it must be endorsed
with a certificate by the Speaker of the Lower House that it is a
B
Money Bill. From the date of the receipt of the Money Bill, the
Rajya Sabha is bound to return the Bill to the Lok Sabha, within
a period of fourteen days, with its recommendations. The Lok
Sabha has the discretion to “either accept or reject all or any of
the recommendations” made by the Rajya Sabha. If the Lok Sabha
C accepts any of the recommendations of the Rajya Sabha, the
Money Bill is deemed to have been passed by both Houses of
the Parliament “with the amendments recommended” by the
Rajya Sabha and accepted by the Lok Sabha. However, when the
Lok Sabha “does not accept any of the recommendations” of the
Rajya Sabha, the Money Bill is said to have been passed by both
D
Houses in the form in which it was originally passed by the Lok
Sabha. If a Money Bill after being passed by the Lok Sabha and
transmitted to the Rajya Sabha for its recommendations is not
returned to the Lok Sabha within a period of fourteen days, it is
then deemed to have been passed by both the Houses of the
E Parliament in the form in which it was originally passed by the
Lok Sabha. [Para 56]791-E-H; 792-A-B]
1.1.2 The Rajya Sabha is a constitutional body in a bicameral
legislature. The makers of the Constitution adopted bicameralism
from Britain. The draftspersons of the Constitution were
F conscious of the impact of a misuse of institutional power. Our
Constitution does not provide absolute power to any institution.
It sets limits for each institution. Our constitutional scheme
envisages a system of checks and balances. The power of the
Speaker of the Lok Sabha, to decide whether a Bill is a Money
Bill, cannot be untrammelled. The contention that the decision
G of Speaker is immune from judicial review and cannot be
questioned, is contrary to the entire scheme of the Constitution,
which is premised on transparency, non-arbitrariness and fairness.
The phrase “shall be final” used in Article 110(3) has been
adopted from Article 22 of the Irish Constitution which provide a
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 89

mechanism for review of the certificate issued by the Speaker. A

Recourse is provided under the Irish Constitution by which the
members of the Upper House of the Irish Parliament can request
the President of Ireland to refer the question of whether a Bill is
a Money Bill, to a Committee of Privileges. The members of the
Constituent Assembly did not adopt this mechanism. Absence of
B
this mechanism does not mean that the decision of the Speaker
of the Lok Sabha cannot be subject to checks and balances, of
which judicial review is an indispensable facet. The Speaker has
to act within the domain, which the Constitution accords to the
office of the Speaker. Judicial review is the ultimate remedy to
ensure that the Speaker does not act beyond constitutional C
entrustment. [Paras 60, 71][793-G-H; 805-B-F]
Justice K S Puttaswamy (Retd) v. Union of India [2017]
10 SCR 569 : (2017) 10 SCC 1 – followed.
Shayara Bano v. Union of India (2017) 9 SCC 1 :
[2017] 7 SCR 797; Kalpana Mehta v. Union of India D
(2018) 7 SCC 1; N P Ponnuswami v. Returning Officer,
Namakkal Constituency, Namakkal, Salem District
[1952] SCR 218; Union of India v. Jyoti Prakash Mitter
(1971) 1 SCC 396 : [1971] 3 SCR 483; Union of India
v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl. E
SCR 131; Kihoto Hollohan v. Zachillhu (1992) Supp
2 SCC 651 : [1992] 1 SCR 686 – relied on
1.1.3 A constitutional trust has been vested in the office of
the Speaker of the Lok Sabha. By declaring an ordinary Bill to be
a Money Bill, the Speaker limits the role of the Rajya Sabha. F
This power cannot be unbridled or bereft of judicial scrutiny. If
the power of the Speaker is exercised contrary to constitutional
norms, it will not only limit the role of the Rajya Sabha, but denude
the efficacy of a legislative body created by the Constitution. Such
an outcome would be inconsistent with the scheme of the Indian
Constitution. Judicial review is necessary to ensure that the G
federal features of the Constitution are not transgressed. [Para
94][830-D-F]
Special Reference No. 1 of 1964 AIR 1965 SC 745 :
[1965] SCR 413; Ramdas Athawale v Union of India
(2010) 4 SCC 1 : [2010] 3 SCR 1059; Raja Ram Pal v H
90 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 : [2007]

1 SCR 1; Mangalore Ganesh Beedi Works v State of
Mysore [1963] Supp 1 SCR 275; Pandit MSM Sharma
v Dr Shree Krishna Sinha AIR 1960 SC 1186 – relied
on.
B Mohd Saeed Siddiqui v State of Uttar Pradesh (2014)
11 SCC 415; Yogendra Kumar Jaiswal v State of Bihar
(2016) 3 SCC 183 – overruled.
Fathali M. Moghaddam, The SAGE Encyclopaedia of
Political Behaviour (2017); Sidharth Chauhan,
Bicameralism: comparative insights and lessons,
C Seminar (February, 2013); Rajya Sabha Secretariat,
Second Chamber In Indian Parliament: Role and
Status of Rajya Sabha, (2009), at page 2; M.N. Kaul
and S.L. Shakdher, Practice and Procedure of
Parliament, Lok Sabha Secretariat (2001); H M
D Seervai, Constitutional Law of India, Universal Law
Co. Pvt. Ltd, Vol. 1, (1991); Rajya Sabha Secretariat,
Structure and Functions of Rajya Sabha Secretariat,
(2009), at pages 2-3; Gary Roethenbaugh, (cited in A.
Cavoukian, Privacy and Biometrics, Information and
Privacy Commissioner, Ontario, Canada, 1999, page
E 11; Els J. Kindt, Privacy and Data Protection Issues
of Biometric Applications: A Comparative Legal
Analysis, Springer (2013) – referred to.
1.2 Whether the Aadhaar Act was validly passed as a Money
Bill.
F 1.2.1 Article 110(1) of the Constitution defines a Money
Bill. For a Bill to be a Money Bill, it must contain “only
provisions” dealing with every or any one of the matters set out
in sub-clauses (a) to (g) of clause 1 of Article 110. The expression
“if it contains only provisions dealing with all or any of the following
G matters, namely...” is crucial. Firstly, the expression “if” indicates
a condition and it is only upon the condition being fulfilled that
the deeming fiction of a Bill being a Money Bill for the purposes
of the Chapter will arise. Secondly, to be a Money Bill, the Bill
should have only those provisions which are referable to clauses
(a) to (g). The condition is much more stringent than stipulating
H that the Bill should incorporate any of the matters spelt out in
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 91

clauses (a) to (g). The words “only provisions” means that besides A
the matters in sub clauses (a) to (g), the Bill shall not include
anything else. Otherwise, the expression “only” will have no
meaning. The word “only” cannot be treated to be otiose or
redundant. Thirdly, the two expressions “if it contains only
provisions” and “namely” indicate that sub-clauses (a) to (g) are
B
exhaustive of what a Money Bill may contain. The contents of a
Money Bill have to be confined to all or any of the matters
specified in sub-clauses (a) to (g). Fourthly, sub-clause (g) covers
any matter incidental to sub-clauses (a) to (f). A matter is incidental
when it is ancillary to what is already specified. Sub-clause (g) is
not a residuary entry which covers all other matters other than C
those specified in sub-clauses (a) to (f). If sub-clause (g) were
read as a catch-all residuary provision, it would defeat the purpose
of defining a class of Bills as Money Bills. What is incidental
under sub-clause (g) is that which is ancillary to a matter which is
already specified in sub-clauses (a) to (f). The test is not whether
D
it is incidental to the content of a Bill but whether it is incidental
to any of the matters specifically enumerated in sub-clauses (a)
to (f). Clause (2) of Article 110 provides that a Bill shall not be
deemed to be a Money Bill just for the reason that it provides for
the imposition of fines or other pecuniary penalties, or for the
demand or payment of fees for licences or fees for services E
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. Like in the Parliament
Act of 1911, the definition of a Money Bill provided under Article
110(1) is exhaustive in nature. A Bill can be a Money Bill if it
F
contains “only provisions” dealing with all or any of the matters
listed under sub-clauses (a) to (g) of Article 110(1). If a Bill
contains provisions which fall outside sub-clauses (a) to (g), it is
not a Money Bill. The entirety of the Bill cannot be regarded as
a Money Bill, once it contains any matters which fall beyond sub-
clauses (a) to (g). Once that is the position, it could be impossible G
to sever those parts which fall within sub-clauses (a) to (g) and
those that lie outside. [Paras 95, 98][831-A-F, G-H; 832-A-B;
834-B-C]
Hari Ram v. Baby Gokul Prasad, (1991) Supp 2 SCC
608; M/s Saru Smelting (P) Ltd. v. Commissioner of
H
92 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Sales Tax, Lucknow (1993) Supp 3 SCC 97 : [1993] 3

SCR 719; SR Bommai v Union of India AIR 1994 SC
1998 – relied on.
1.2.2 The Lok Sabha cannot introduce and pass a legislative
measure in the garb of a Money Bill, which could otherwise have
B been amended or rejected by the Rajya Sabha. Introduction and
passing of a Bill as a Money Bill, which does not qualify to be a
Money Bill under Article 110(1) of the Constitution, is plainly
unconstitutional. The Lok Sabha is not entrusted with the entire
authority of Parliament. The Lok Sabha, the Rajya Sabha and the
President together constitute the Parliament of India. The Lok
C Sabha is a body of elected representatives and represents the
aspirations of citizens. Yet, like every constitutional institution,
it is part of this basic structure of the Constitution. A political
party or a coalition which holds the majority in the Lok Sabha
cannot subvert the working of the Constitution. [Para 99][835-
D C-E]
1.3. The Speaker of the Lok Sabha has an onerous
constitutional duty to ensure that a Bill, which is not a Money
Bill is not passed as a Money Bill. The Speaker of the Lok Sabha,
the Chairman of the Rajya Sabha, the members of the Lok Sabha
E and the Rajya Sabha, and the President need to work in
constitutional solidarity to ensure that no provision of the
Constitution is diluted or subverted. The Aadhaar Act was passed
as a Money Bill. The broad description of the provisions of the
Aadhaar Act indicates that the Act creates a framework for
obtaining a unique identity number - the Aadhaar number - by
F submitting demographic and biometric information and
undergoing the process of enrolment and authentication. The Act
indicates that the Aadhaar number may be accepted as proof of
identity for any purpose. It creates a central database (CIDR) for
storage of identity information collected from individuals. The
G primary object of the legislation is to create one national identity
for every resident. It seeks to do so by legislating a process for
collecting demographic and biometric information. The Act has
created an authority to oversee the fulfilment of its provisions.
In its primary focus and initiatives, the law traverses beyond the
territory reserved by Article 110 for a Money Bill. Aadhaar
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 93

numbers may be used for “other purposes”. [Paras 100, 101, A

107][835-G; 836-A-B; 839-D-G; 840-B]
1.4 The Preamble to the Aadhaar Act indicates that the main
objective was to achieve an efficient and “targeted delivery of
subsidies, benefits and services, the expenditure for which is
incurred from the Consolidated Fund of India”. The substantive B
provisions of the Act are, however, not confined to the object
specified in the Preamble. Indeed, they travel far beyond the
boundaries of a money bill under Article 110(1). The enrolment
on the basis of demographic and biometric information,
generation of Aadhaar number, obtaining consent of individuals
before collecting their individual information, creation of a C
statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure
of information in certain circumstances, creation of offences and
penalties for disclosure or loss of information, and the use of the
Aadhaar number for any purpose lie outside the ambit of Article D
110. These themes are also not incidental to any of the matters
covered by sub-clauses (a) to (f) of Article 110(1). [Para 108][840-
H; 841-A-B]
1.5 Under clause (e) of Article 110(1), the money bill must
deal with the declaring of any expenditure to be expenditure E
charged on the Consolidated Fund of India (or increasing the
amount of expenditure). Section 7 does not declare the
expenditure incurred on services, benefits or subsidies to be a
charge on the Consolidated Fund of India. What Section 7 does
is to enact a provision allowing for Aadhaar to be made mandatory,
in the case of services, benefits or subsidies which are charged F
to the Consolidated Fund. Section 7 provides that in the case of
services, benefits or subsidies which are already charged to the
Consolidated Fund, Aadhaar can be made mandatory to avail of
them. Hence, even Section 7 is not within the ambit of Article
110(1)(e). However, even if Section 7 were to be held to be G
referable to Article 110, that does not apply to the other provisions
of the Act. The other provisions of the Act do not in any event fall
within the ambit of Article 110(1). Section 57 of the Act in
particular (which creates a platform for the use of the Aadhaar
number by the private entities) can by no stretch of logic be
H
94 SUPREME COURT REPORTS [2018] 8 S.C.R.

A covered under Article 110(1). The other provisions of the Act do

not deal with that which has been provided under Sub-clauses (a)
to (g) of Article 110. As regards the ‘incidental’ provision under
Article 110(1)(g), the provisions of the Aadhaar Act are not
“incidental to any of the matters specified in sub-clauses (a) to
(f)”. Even if it is assumed that there is one provision (Section 7)
B
which is relatable to sub-clause (e) of Article 110(1), the other
provisions of the Act are unrelated to Article 110(1). [Para
109][841-D-E; 842-A-B]
1.6 The doctrine of pith and substance is mainly used to
examine whether the legislature has the competence to enact a
C law with regard to any of the three Lists provided under the
Constitution. It cannot be applied to sustain as a Money Bill, a
Bill which travels beyond the constitutional boundaries set out
by Article 110. Whether a Bill is validly passed as a Money Bill
has nothing to do with the legislative competence of the
D legislature under Article 246 of the Constitution.[Para 115][848-
F-G]
A S Krishna v. State of Madras [1957] SCR 399; State
of Maharashtra v. Bharat Shanti Lal Shah (2008) 13
SCC 5 : [2008] 12 SCR 1083 – relied on
E Union of India v. Shah Goverdhan L Kabra Teachers’
College (2002) 8 SCC 228 : [2002] 3 Suppl. SCR 220
– held inapplicable.
1.7 Introducing the Aadhaar Act as a Money Bill has
bypassed the constitutional authority of the Rajya Sabha. It
F deprived the Rajya Sabha from altering the provisions of the Bill
by carrying out amendments. The Rajya Sabha has an important
role in the making of laws. Superseding the authority of the Rajya
Sabha is in conflict with the constitutional scheme and the
legitimacy of democratic institutions. It constitutes a fraud on
G the Constitution. Passing of a Bill as a Money Bill, when it does
not qualify for it, damages the delicate balance of bicameralism
which is a part of the basic structure of the Constitution.
Institutions are crucial to democracy. The Act thus fails to qualify
as a Money Bill under Article 110 of the Constitution. The Aadhaar
Act is in violation of Article 110 and, therefore, is liable to be
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 95

declared unconstitutional. [Paras 116, 117] [850-F-G; 851- A

B-C, E-F]
2. Biometrics, Privacy and Aadhaar
2.1.1 Biometric technologies imply that “unique or
distinctive human characteristics of a person are collected,
measured and stored for the automated verification of a claim B
made by that person for the identification of that person.” These
systems thus identify or verify the identity or a claim of persons
on the basis of the automated measurement and analysis of their
biological traits (such as fingerprints, face and iris) or behavioral
characteristics (such as signature and voice). The adoption of C
biometric technologies in developing countries in particular poses
unique challenges since the implementation of new technologies
in these countries is rarely preceded by the enactment of robust
legal frameworks. The lack of regulatory frameworks, or the
inadequacy of existing frameworks, has societal and ethical
consequences and poses a constant risk that the concepts of D
privacy, liberty and other fundamental freedoms will be
misunderstood, eroded or devalued. The proliferation of biometric
technology has facilitated the invasion of individual privacy at an
unprecedented scale. The raw information at the heart of
biometrics is personal by its very nature. The Aadhaar Act E
recognises this as sensitive personal information. Biometric
technology is unique in the sense that it uses part of the human
body or behaviour as the basis of authentication or identification
and is therefore intimately connected to the individual concerned.
[Paras 118, 121, 122, 124][852-B; 854-D-E; 855-B, D-E]
F
2.1.2 There are two main groups of privacy- related
interests that are directly pertinent to the contemporary
discussion on the ethical and legal implications of biometrics.
The first group falls under ‘informational privacy’ and is concerned
with control of personal information. The ability to control
personal information about oneself is closely related to the dignity G
of the individual, self-respect and sense of personhood. The
second interest group falls under the rubric of ‘physical privacy’.
This sense of privacy transcends the purely physical and is aimed
essentially at protecting the dignity of the human person. It is a
safeguard against intrusions into persons’ physical bodies and H
96 SUPREME COURT REPORTS [2018] 8 S.C.R.

A spaces. Another issue is of property rights with respect to privacy,

which concerns the appropriation and ownership of interests in
human personality. In many jurisdictions, the basis of informational
privacy is the notion that all information about an individual is in
some fundamental way their own property, and it is theirs to
communicate or retain as they deem fit. [Para 125][855-F-G;
B
856-A-C]
2.1.3 The collection of most forms of biometric data
requires some infringement of the data subject’s personal space.
Iris and fingerprint scanners require close proximity of biometric
sensors to body parts such as eyes, hands and fingertips. Even in
C the context of law enforcement and forensic identification, the
use of fingerprinting is acknowledged to jeopardise physical
privacy. Many countries have laws and regulations which are
intended to regulate such measures, in order to protect the
individual’s rights against infringement by state powers and law
D enforcement. However, biometrics for the purpose of
authentication and identification is different as they do not have a
specific goal of finding traces related to a crime but are instead
conducted for the purpose of generating identity information
specific to an individual. This difference in purpose actually
renders the collection of physical biometrics a more serious
E breach of integrity and privacy. Concerns about physical privacy
usually take a backseat as compared to concerns about
informational privacy. The reason for this is that physical intrusion
resulting from the use of biometric technology usually results
from the collection of physical information. However, for some
F people of specific cultural or religious backgrounds, even the
mental harm resulting from physical intrusion maybe quite
serious. [Para 126, 127][856-C-E, G]
Nancy Yue Liu, Bio-Privacy: Privacy Regulations and
the Challenge of Biometrics, Routledge (2013); Simon
G Davies, as cited in John D. Woodward, Biometric
Scanning, Law & Policy: Identifying the Concerns -
Drafting the Biometric Blueprint, University of
Pittsburgh Law Review, (1997); Daniel M. L
Storisteanu, Toby L. Norman, Alexandra Grigore and
Alain B. Labrique, Can biometrics beat the developing
H world’s challenges?, Biometric Technology Today
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 97

(2016); Pam Dixon, A Failure to Do No Harm - India’s A

Aadhaar biometric ID program and its inability to
protect privacy in relation to measures in Europe and
the U.S., Health and Technology (2017), Vol. 7, at
pages 539–567 – referred to.
2.2 Consent in the collection of biometric data: Privacy B
Concerns in the Aadhaar Act
The right of an individual to access information related to
his or her authentication record is recognized in Section 3(2)(c)
and Section 32(2) of the Aadhaar Act. However, the
supplementary regulations that complement the Act are bereft C
of detail on the procedure to access such information. Although
Regulation 5 mentions that at the time of authentication,
requesting entities shall inform the Aadhaar number holder of
alternatives to submission of identity information for the purpose
of authentication, and Regulation 6 mandates that the requesting
entity shall obtain the consent of the Aadhaar number holder for D
the authentication, in neither of the above circumstances do the
regulations specify the clearly defined options that should be
made available to the Aadhaar number holder in case they do not
wish to submit identity information, nor do the regulations specify
the procedure to be followed in case the Aadhaar number holder E
does not provide consent. This is a significant omission. [Paras
145, 146][871-C, E-F]
Identification for Development (World Bank Group),
Technical Standards for Digital Identity Systems for
Digital Identity Draft for Discussion, available at F
Technical-Standards-for-Digital-Identity.pdf, at page
22; Katie Bird, Is your biometric data safe online?
ISO/IEC standard ensures security and privacy, (11
August 2011) – referred to.
2.3 Extent of information disclosed during authentication G
& sharing of core biometric information: Section 29(1) of the
Aadhaar Act expressly states that ‘core biometric information
can never be shared with anyone for any reason whatsoever or
be used for any purpose other than generation of Aadhaar numbers
and authentication under this Act’. However, this provision is
contradicted by Section 29(4) of the Act, the proviso to which H
98 SUPREME COURT REPORTS [2018] 8 S.C.R.

A grants UIDAI the power to publish, display or post core biometric

information of an individual for purposes specified by the
regulations. Moreover, sub-sections 29(1) and (2), in effect, create
distinction between two classes of information (core biometric
information and identity information), which are integral to
individual identity. Identity information requires equal protection
B
as provided to core biometric information. [Paras 145, 148][872-
G-H; 873-C-E; 874-A]
2.4 Other concerns regarding the Aadhaar Act:
Misconceptions regarding the efficacy of biometric information:
Sections 6 and 31(2) of the Aadhaar Act place an additional onus
C on individual Aadhaar holders to update their information. These
provisions create a legal mandate on individuals to ensure that
their information is accurate within the CIDR. An individual’s
biometric information may change from time to time. Natural
factors like ageing, manual labour, injury and illness can cause an
D individual’s biometric information to be altered over the course
of a lifetime. [Paras 150-151][874-F; 875-C-D]
Ramesh Subramanian, Computer Security, Privacy &
Politics: Current Issues, Challenges & Solutions,
IRM Press, at pages 99-100; L. Vishwanath, Four
E Reasons You Should Worry About Aadhaar’s Use of
Biometrics, The Wire (28 March, 2017); A.
Cavoukian, Privacy and Biometrics, Information and
Privacy Commissioner Canada (1999); Robert
Gellman, Privacy and Biometric ID Systems: An
Approach Using Fair Information Practices for
F Developing Countries, CGD Policy Paper 028
Washington DC: Centre for Global Development (1
August 2013) – referred to.
2.5 No access to biometric records in database: The
proviso to Section 28(5) of the Aadhaar Act disallows an individual
G access to the biometric information that forms the core of his or
her unique ID (Aadhaar). Denial of access to the individual violates
a fundamental principle of data protection: ownership of the data
must at all times vest with the individual. Overlooking this
fundamental principle is manifestly arbitrary and violative of
H Article 14. [Para 152][876-F-G; 877-C]
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 99

2.6 Biometric locking: Authentication Regulations 11 (1) A

and (4) provide for the facility of Biometric Locking. The
provision allowing biometric locking is salutary to the extent that
it allows Aadhaar number holders to permanently lock their
biometrics and temporarily unlock them only when needed for
biometric authentication. But the regulation is problematic to the
B
extent that it also empowers the UIDAI to make provisions to
remove such locking without any specified grounds for doing so.
[Para 153][877-C-D, E-F]
2.7 Key takeaways: 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. C
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 D
form, the Aadhaar framework does not address the privacy
concerns issues. [Para 157][879-F-G]
John D Woodward, Biometrics: Identifying Law &
Policy Concerns, in Biometrics (AK Jain A.K, R Bolle,
and S Pankanti eds.), Springer (1996); Robert Gellman, E
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);
Pam Dixon, A Failure to Do No Harm – India’s Aadhaar
biometric ID program and its inability to protect F
privacy in relation to measures in Europe and the U.S.,
Health and Technology, Vol. 7 (2017), at pages 539–
567 – referred to.
3. Legitimate state aim
G
3.1 Directive Principles: 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 welfare of the people. Article 41 speaks of the right to
work, to education, and to public assistance. Article 43
contemplates a living wage and conditions of work which provide H
100 SUPREME COURT REPORTS [2018] 8 S.C.R.

A a decent standard of life. 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.
[Paras 158, 161][880-A; 881-F-G; 882-F-G; 883-A, C]
3.2 Development and freedom: Social security acts as an
B underpinning link with development. There is also a two-way
relationship between development and social security (expansion
of human capability). 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
C be accompanied by accountability and transparency. These
concerns form the basis of the Aadhaar Act, 2016. 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
D targeted beneficiaries”. 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
E 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. As an instrument for verifying identity, Aadhaar
seeks to ensure that social welfare benefits are obtained by
F 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. There is a state interest in ensuring that the
welfare benefits which the state provides reach those for whom
they are intended. [Paras 164, 174, 175, 177, 178][885-F; 894-F-
G G; 895-E; 897-G; 898-C-D; 899-B-C, E, G]
Minerva Mills Ltd. v. Union of India (1980) 3 SCC
625 : [1981] 1 SCR 206 – relied on.
Arun K Thiruvengadam, The Constitution of India: A
H Contextual Analysis, (Bloomsbury 2017), at page 1;
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 101

George H Gadbois, JR, Supreme Court of India: The A

Beginnings (Vikram Raghavan and Vasujith Ram
eds.), Oxford University Press (2017), at page 193;
“A known but an indifferent judge”: Situating Ronald
Dworkin in contemporary Indian jurisprudence,
International Journal of Constitutional Law, (2003)
B
at page 582 by Upendra Baxi; Development as
Freedom, Oxford University Press (2000), at page
xii by Amartya Sen; Two Concepts of Liberty by Isaiah
Berlin; The Constitution of Liberty, Routledge & Kegan
Paul, (1960) at pages 11, 207-208 by F A Hayek;
Women and Human Development, Cambridge C
University Press, (2000) by Martha Nussbaum; Basic
Rights: Subsistence, Affluence and US Foreign Policy,
Princeton University Press, Second Edition (1996) by
Henry Shue; The Idea of Justice, Penguin (2009) at
pages 379-380 by Amartya Sen; An Uncertain Glory,
D
Penguin (2013), at pages x and xi by Jean Dreze and
Amartya Sen – referred to.
3.3 Identity and Identification: Identity is inseparable from
the human personality. An identity is a statement of who an
individual is. The human personality is, at a certain level, all about
identity, for it is through the assertion of identity that each E
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. 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 F
autonomous persons, the Constitution recognizes our ability to
preserve and shape our identities in interactions with others.
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 G
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 H
102 SUPREME COURT REPORTS [2018] 8 S.C.R.

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. [Paras 179, 180][899-G-H; 900-A-B, E-F]
3.4 There are two important facets of the Aadhaar regime.
The first is that under Section 3, it is a voluntary option of the
B individual to choose Aadhaar as a form of identification. However,
if the individual seeks a subsidy, benefit or service for which the
expenditure is 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
C 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
D 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. The mandate
E 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 meant for those at
F the foot of the socio-economic ladder are not mis-utilized by rent-
seeking behavior. [Para 187][907-C-E, G-H; 908-A]
National Legal Services Authority v. Union of India
(2014) 5 SCC 438; Natural Resources Allocation, In
Re, Special Reference No.1 of 2012 (2012) 10 SCC 1 :
G [2012] 9 SCR 311; Centre for Public Interest Litigation
v. Union of India (2012) 3 SCC 1 : [2012] 3 SCR 147;
Reliance Telecom Limited v. Union of India (2017) 4
SCC 269 : [2017] 4 SCR 972 – relied on.
Opinion on the Right to Identity, 2007; Identity and
H Identification – the Individual in the Time of
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 103

Networked Governance, Socio Legal Review by A

Nishant Shah; Conversation with Manuel Castells,
Globetrotter by Manuel Castells – referred to.
4. Proportionality
4.1 Harmonising conflicting rights – It is the foremost duty
of the State to work towards achieving and maintaining a fine B
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 C
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.
[Para 190][911-B-C]
4.2 While exercising judicial review, courts are often D
confronted with situations involving conflicts between rights,
tensions between individuals arising from the assertion of rights
and discord arising out of the assertion of 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 E
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.
[Para 191][911-D-E] F
4.3 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 G
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.
H
104 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 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
B
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. 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,
C 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). 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
D
is inappropriate. [Paras 196, 198][915-G-H; 916-A-C; 917-B, E]
People’s Union for Civil Liberties (PUCL) v Union of
India (2003) 4 SCC 399 : [2003] 2 SCR 1136;
Thalappalam Service Cooperative Bank Limited v State
of Kerala (2013) 16 SCC 82 : [2013] 14 SCR 475;
E G Sundarrajan v Union of India (2013) 6 SCC 620 :
[2013] 8 SCR 631; Subramanian Swamy v Union of
India (2016) 7 SCC 221 : [2016] 3 SCR 865; Asha
Ranjan v Chandrakeshwar Prasad (2017) 4 SCC 397;
Chintaman Rao v State of Madhya Pradesh [1950] SCR
F 759; State of Madras v V G Row [1952] SCR 597 –
relied on.
Granville Austin, Working a Democratic Constitution:
A History of the Indian Experience, Oxford University
Press (2003) at page 6; Lon L. Fuller and Kenneth I.
G Winston, The Forms and Limits of Adjudication,
Harvard Law Review, Vol. 92, (1978), at pages 353-
409; Kwame Anthony Appiah, The Lies That Bind:
Rethinking Identity, Liveright Publishing (2018); Francis
Fukuyama, Identity: The Demand for Dignity and the
Politics of Enlightenment, Farrar, Straus and Giroux
H (2018); Anand Giridharadas ‘What is Identity?’, The
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 105

New York Times, 27 August, 2018; Peter F Drucker, A

The Age of Discontinuity: Guidelines to Our Changing
Society, Harper & Row (1969). Drucker’s book
popularized the term ‘Knowledge Economy’; What
is Knowledge Economy?’, IGI Global: Disseminator
of Knowledge; Krishnadas Rajagopal, ‘Aadhaar in
B
numbers: key figures from UIDAI CEO’s
presentation to the Supreme Court’, The Hindu,
(March 22, 2018). Aadhaar enrollment as of March
2018 stood at over 1 billion; Upendra Baxi, The Right
To Be Human: Some Heresies, India International
Centre Quarterly, Vol. 13, (1986); Thomas Erskine C
May, A treatise on the law, privileges, proceedings
and usage of Parliament, Ninth Edition (1883); B Shiva
Rao, The Framing of India’s Constitution: A Study,
Indian Institution of Public Administration (1968), at
page 420; Pratik Datta, Shefali Malhotra & Shivangi
D
Tyagi, Judicial Review and Money Bills, NUJS Law
Review (2017); Granville Austin, The Indian
Constitution: Cornerstone of a Nation, Oxford
University Press (1966) – referred to.
4.4 Proportionality standard in Indian jurisprudence:
Proportionality has been the core of reasonableness since the E
1950s. In Puttaswamy, (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. The third
principle adopts the test of proportionality to ensure a rational
nexus between the objects and the means adopted to achieve F
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 G
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. The ‘test of
proportionality’ is a judicially-entrenched principle which has
invigorated fundamental rights jurisprudence in the country. The H
106 SUPREME COURT REPORTS [2018] 8 S.C.R.

A application of the proportionality standard in rights-based

adjudication is well-recognised across diverse jurisdictions. [Paras
199, 204][917-F; 918-C-D; 922-B-C, E-G; 923-B-C]
State of Bihar v. Kamla Kant Misra (1969) 3 SCC 337
: [1970] 3 SCR 181; Mohammed Faruk v. State of
Madhya Pradesh (1969) 1 SCC 853 : [1970] 1 SCR
B
156; Bishambhar Dayal Chandra Mohan v. State of
Uttar Pradesh (1982) 1 SCC 39 : [1982] 1 SCR 1137;
Om Kumar v. Union of India (2001) 2 SCC 386 : [2000]
4 Suppl. SCR 693; Teri Oat Estates v. U.T., Chandigarh
(2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235; Modern
C Dental College and Research Centre v. State of Madhya
Pradesh (2016) 7 SCC 353 – relied on.
Elloy de Freitas v. Permanent Secretary of Ministry of
Agriculture, Fisheries, Lands and Housing, [1999] 1
AC 69; Huang (FC) v. Secretary of State for the Home
D Department [2007] UKHL 11 – referred to.
All things in Proportion? American Rights Review
and the Problem of Balancing, Emory Law Journal,
Vol. 60 (2011) by Jud Mathews and Alec Stone Sweet;
Proportionality Balancing and Global
Constitutionalism, Columbia Journal of Transnational
E Law, Vol. 47 (2008) by Alec Stone Sweet & Jud
Mathews; 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,
F South African Journal on Human Rights, Vol. 10 (1994)
by Moshe Cohen-Eliya and Iddo Porat; The Principle
of Proportionality, University of Michigan Journal of
Law Reform, Vol. 42 (2009) Andrew B. Serwin, Privacy
3.0 – The Principle of Proportionality, University of
Michigan Journal of Law Reform, Vol. 42 (2009) by
G Andrew B. Serwin, Privacy 3.0; Adalah v. The
Minister of Interior, HCJ 7052/03; Jean Dreze and
Amartya Sen, An Uncertain Glory, Penguin (2013), at
pages x and xi; Gary Roethenbaugh, (cited in A.
Cavoukian, Privacy and Biometrics, Information and
H Privacy Commissioner, Ontario, Canada, 1999, page
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 107

11; Rajya Sabha Secretariat, Structure and Functions A

of Rajya Sabha Secretariat, (2009), at pages 2-3;
Aharon Barak’s seminal book; Aharon Barak,
Proportionality: Constitutional Rights and their
Limitations, Cambridge University Press (2012) –
referred to.
B
4.5 Aadhaar: the proportionality analysis
4.5.1 When Aadhaar is seeded into every database, it
becomes a bridge across discreet data silos, which allows anyone
with access to this information to re-construct a profile of an
individual’s life. While Section 2(k) of the Aadhaar Act excludes
storage of individual information related to race, religion, caste, C
tribe, ethnicity, language, income or medical history into CIDR,
the mandatory linking of Aadhaar with various schemes allows
the same result in effect. What the Aadhaar Act seeks to exclude
specifically is done in effect by the mandatory linking of Aadhaar
numbers with different databases, under cover of the delivery of D
benefits and services. Moreover, the absence of proof of an
Aadhaar number would render a resident non-existent in the eyes
of the State, and would deny basic facilities to such residents.
Section 7 thus makes a direct impact on the lives of citizens. If
the requirement of Aadhaar is made mandatory for every benefit
or service which the government provides, it is impossible to E
live in contemporary India without Aadhaar. It suffers from the
vice of being overbroad. The scope of subsidies provided by the
government (which incur expenditure from the Consolidated
Fund) is not the same as that of other benefits and services which
the government provides to its citizens. Therefore, benefits and F
services cannot be measured with the same yardstick as
subsidies. The inclusion of services and benefits in Section 7 is a
pre-cursor to the kind of function creep which is inconsistent
with privacy and informational self-determination. The broad
definitions of the expressions ‘services and ‘benefits’ would
enable government to regulate almost every facet of its G
engagement with citizens under the Aadhaar platform. Section 7
suffers from clear overbreadth in its uncanalised application to
services and benefits. [Para 247][968-E-H; 969-A-C]
Monnet Ispat and Energy Ltd v Union of India (2012)
11 SCC 1 : [2012] 7 SCR 644 – referred to. H
108 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Federal Census Act Case (Volkszählungsurteil) (1983)

65 BVerfGE 1; S and Marper v United Kingdom (2008)
48 EHRR 1169; Aycaguer v. France Application no.
8806/12; Digital Rights Ireland Ltd v. Minister C 293/
12 and C 594/12; Michael Schwarz v. Stadt Bochum
[2013] EUECJ C-291/12; Madhewoo v. The State of
B
Mauritius [2016] UKPC 30; S and Marper v. The
United Kingdom [2008] ECHR 1581; Vernonia School
District 47J v. Acton 515 U.S. 646 (1995); Skinner v
Railway Labor Executives’ Association 489 U.S. 602
(1989); Whalen v Roe 429 U.S. 589 (1977); United
C States v Dionisio 410 U.S. 1 (1973); Bowen v. Roy 476
U.S. 693 (1986); In re Crawford 194 F.3d 954 (9th
Cir. 1999); Haskell v. Harris 669 F.3d 1049 (9th Cir.
2012); Utility Workers Union of America v. Nuclear
Regulatory Commission 664 F. Supp. 136 (S.D.N.Y.
1987); Nicholas A Iacobucci v. City of Newport 785
D
F.2d 1354 (6th Cir. 1986); Thom v. New York Stock
Exchange 306 F. Supp. 1002 (S.D.N.Y. 1969); Perkey
v. Department of Motor Vehicles (1986) 42 Cal. 3D 185;
Buchanan v Wing N.Y.S.2d 865; People v. Stuller 10
Cal. App.3d 582 (1970); United States v. Kelly 55 F.2d
E 67 (2d Cir. 1932); Brown v. Brannon 399 F. Supp. 133
(M.D.N.C. 1975) – referred to.
Association pour la promotion de l’image Conseil d’
Etat in France, 26 October 2011; Privacy and Security
of Aadhaar: A Computer Science Perspective” –
F referred to.
4.5.2 Can the provisions of Section 7 be applied with
any justification to pensions payable on account of the past service
rendered by a person to the state? Pension is not a largesse or
bounty conferred by the state. Pension, as a condition of service,
attaches as a recompense for the long years of service rendered
G by an individual to the state and its instrumentalities. A right
cannot be denied on the anvil of requiring one and only one means
of identification. The pension disbursing authority is entitled to
lay down regulations (which are generally speaking, already in
place) to ensure the disbursal of pension to the person who is
H rightfully entitled. This aim of the government can be fulfilled by
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 109

other less intrusive measures. The requirement of insisting on A

an Aadhaar number for the payment of pensionary benefits
involves a breach of the principle of proportionality. Such a
requirement would clearly be contrary to the mandate of Article
14. Similarly, the state as a part of its welfare obligations provides
numerous benefits to school going children, including mid-day
B
meals or scholarships, to children belonging to the marginalised
segments of the society. The object of the state is to ensure that
the benefits which it offers are being availed of by genuine students
who are entitled to them. This legitimate aim can be fulfilled by
adopting less intrusive measures as opposed to the mandatory
enforcement of the Aadhaar scheme as the sole repository of C
identification. The state has failed to demonstrate that a less
intrusive measure other than biometric authentication will not
subserve its purposes. The inclusion of benefits and services in
Section 7 suffers from a patent ambiguity, vagueness and
overbreadth which renders the inclusion of services and benefits
D
arbitrary and violative of Article 14. [Para 248][969-G-H; 970-A-
C]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Vishaka v. State of Rajasthan (1997)
6 SCC 241 : [1997] 3 Suppl. SCR 404; Githa
Hariharan (Ms) v. Reserve Bank of India (1999) 2 SCC E
228 : [1999] 1 SCR 669; Anuj Garg v. Hotel
Association of India (2008) 3 SCC 1 : [2007] 12
SCR 991; National Legal Services Authority v. Union
of India (2014) 5 SCC 438; Madhu Kishwar v. State of
Bihar (1996) 5 SCC 125 : [1996] 1 Suppl. SCR 442; F
Nandini Sundar v. State of Chattisgarh (2011) 7 SCC
547 : [2011] 8 SCR 1028 – relied on.
Betty Drexhage, Bicameral Legislatures: An
International Comparison, Ministry of the Interior and
Kingdom Relations- Netherlands (2015), at page 7;
Abhinay Muthoo & Kenneth A. Shepsle, The G
Constitutional Choice of Bicameralism, in Institutions
and Economic Performance (Elhanan Helpman ed.),
Harvard University Press (2008), at pages 251-252;
James Madison, The Federalist No. 62 – The Senate,
The Federalist Papers (1788); William H. Riker, The H
110 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Justification of Bicameralism, International Political

Science Review (1992), Vol. 13, Issue 1, at pages
101–16; Saul Levmore, Bicameralism: When Are Two
Decisions Better than One?, International Review of
Law and Economics (1992), Vol. 12, at pages 147-
148; James N. Druckman & Michael F. Thies, The
B
Importance of Concurrence: The Impact of
Bicameralism on Government Formation and
Duration, American Journal of Political Science
(2002), Vol. 46, No. 4, at pages 760-771; Elliot Bulmer,
Bicameralism, International Institute for Democracy
C and Electoral Assistance (2017), at page 4; James R.
Rogers, The Advantage of Second Chambers in
Republican Legislatures: An Informational Theory,
at page 6; “Privacy and Data Protection Issues of
Biometric Applications: A Comparative Legal
Analysis”; Automating Inequality: How High-Tech
D
Tools Profile, Police, and Punish the Poor”; Aadhaar
and Food Security in Jharkhand: Pain without Gain?”
– referred to.
4.5.3 Aadhaar is about identification and is an instrument
which facilitates a proof of identity. It must not obliterate
E constitutional identity. The definition of demographic information
in Section 2(k) excludes race, religion, caste, tribe, ethnicity,
language, records of entitlement, income or medical history.
However, the linking of the Aadhaar number to different databases
is capable of profiling an individual, which could include information
F regarding her/his race, religion, caste, tribe, ethnicity, language,
records of entitlement, income or medical history. Thus, the
impact of technology is such that the scheme of Aadhaar can
reduce different constitutional identities into a single identity of
a 12-digit number and infringe the right of an individual to identify
herself/himself with choice. [Para 252][974-F-G; 975-A]
G
4.5.4 Social security schemes and programmes are a
medium of existence of a large segment of society. Social security
schemes in India, such as the PDS, were introduced to protect
the dignity of the marginalized. Exclusion from these schemes
defeats the rationale for the schemes which is to overcome chronic
H hunger and malnutrition. Exclusion is violative of human dignity.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 111

The statistics recorded in government records and the affidavits A

filed by the petitioners point out glaring examples of exclusion
due to technical errors in Aadhaar. Exclusion as a consequence
of biometric devices has a disproportionate impact on the lives
of the marginalized and poor. Compulsive linking of biometrics
to constitutional entitlements should not result in denial to the
B
impoverished. The Court has to be specifically conscious of the
dignity of the underprivileged. The exclusion errors in this case
have led to grave injustice to the marginalized. The Court,
therefore, has to play an active role in protecting their dignity.
[Para 253][975-B-F]
4.5.5 There is no antinomy between the right to privacy C
and the legitimate goals of the State. An invasion of privacy has
to be proportional to and carefully tailored for achieving a
legitimate aim. While the right to food is an important right and
its promotion is a constitutional obligation of the State, yet the
right to privacy cannot simply and automatically yield to it. No D
legitimate goal of the State can be allowed at the cost of
infringement of a fundamental right without passing the test of
constitutionality. While analysing the architecture of Aadhaar, this
Court has demonstrated how the purported safeguards in the
Aadhaar architecture are inadequate to protect the integrity of
personal data, the right of informational self-determination and E
above all rights attributable to the privacy-dignity-autonomy
trilogy. It is also concluded that the Aadhaar scheme is capable
of destroying different constitutional identities. The financial
exclusion caused due to errors in Aadhaar based authentication
violate the individual’s right to dignity. The Aadhaar scheme F
causes an unwarranted intrusion into fundamental freedoms
guaranteed under the Indian Constitution since the respondents
have failed to demonstrate that these measures satisfy the test
of necessity and proportionality. [Para 255][976-D-G]
4.6 Dignity and financial exclusion: Dignity is an integral G
element of natural law and an inalienable constitutional construct.
To lead a dignified life is a constitutional assurance to an
individual. Any action or inaction on the part of the State which is
insensitive to and unconcerned about protecting the dignity of
the marginalized is constitutionally impermissible. Denial of
benefits arising out of any social security scheme which promotes H
112 SUPREME COURT REPORTS [2018] 8 S.C.R.

A socio-economic rights of the marginalized, would not be legitimate

under the Constitution, for the reason that such denial violates
human dignity. No individual can be made to part with his or her
dignity. Responsibility for protection of dignity lies not only with
governments but also with individuals, groups and entities.
Section 7 of the Aadhaar Act makes it mandatory for an individual
B
to undergo authentication or furnish proof of possession of an
Aadhaar number in order to avail a subsidy, benefit or service,
which incurs expenditure from the Consolidated Fund of India.
Errors in biometrics matching imply that an individual will not be
considered a part of the biometrics database. If a benefit or service
C is subject to the matching of biometrics, then any mismatch would
result in a denial of that benefit or service. Exclusion based on
technological errors, with no fault of the individual, is a violation
of dignity. The fate of individuals cannot be left to the
vulnerabilities of technological algorithms or devices. Even a
small percentage of error results in a population of crores being
D
affected. Denial of subsidies and benefits to them due to the
infirmities of biometric technology is a threat to good governance
and social parity. [Paras 256, 257, 258, 262][976-G; 977-B; 978-
B-C, E; 984-G; 986-D]
4.7 Constitutional validity of Section 139AA of the Income
E Tax Act 1961
Section 139AA of the Income Tax Act 1961 which was
inserted by the Finance Act 2017, mandates the quoting of an
Aadhaar number in the application for a Permanent Account
Number (PAN) and in the return of income tax. Failure to intimate
F an Aadhaar number results in the PAN being deemed invalid
retrospectively. Section 139AA of the Income Tax Act 1962 is
postulated on the requirement of Aadhaar having been enacted
under a valid piece of legislation. The validity of the legislation
seeding Aadhaar to PAN is dependent upon and cannot be
segregated from the validity of the parent Aadhaar legislation.
G The decision in Puttaswamy has recognised that protection of
the interests of the revenue constitutes a legitimate state aim in
the three-pronged test of proportionality. The circumstances
which have been adverted to in the decision in Binoy Viswam are
a sufficient indicator of the legitimate concerns of the revenue to
H curb tax evasion, by embarking upon a programme for
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 113

de-duplication of the Pan data base. A legitimate state aim does A

exist. However, that in itself is not sufficient to uphold the validity
of the law, which must meet the other parameters of
proportionality spelt out in Puttaswamy. The explanation to Section
139AA adopts the definition of the expressions ‘Aadhaar
number’, ‘enrolment’ and ‘resident’ from the parent Aadhaar
B
legislation. The seeding of Aadhaar with Pan cards must depend
for its validity on the constitutional validity of the Aadhaar
legislation. Hence, besides affirming that the object of the
measure in Section 139AA constitutes a legitimate state aim, the
decision of this Court in regard to the validity of Aadhaar will
impact upon the seeding of PAN with Aadhaar, which Section C
139AA seeks to achieve. [Paras 271, 278][995-A; 1003-B; 1005-
D-F]
Binoy Viswam v. Union of India (2017) 7 SCC 59 :
[2017] 7 SCR 1; Malpe Vishwanath Acharya v. State
of Maharashtra (1998) 2 SCC 1 : [1997] 6 Suppl. SCR D
717; Mardia Chemicals Ltd. v. Union of India (2004) 4
SCC 311 : [2004] 3 SCR 982; State of Tamil Nadu v.
K Shyam Sunder (2011) 8 SCC 737 : [2011]
11 SCR 1094; Andhra Pradesh Dairy Development
Corporation Federation v. B Narasimha Reddy (2011)
9 SCC 286 : [2011] 14 SCR 1; K T Plantation Private E
Limited v. State of Karnataka (2011) 9 SCC 1 : [2011]
13 SCR 636; Avishek Goenka v. Union of India (2012)
5 SCC 275 : [2012] 5 SCR 547 – referred to.
4.8 Linking of SIM cards and Aadhaar numbers
The state cannot be oblivious to the need to protect privacy F
and of the dangers inherent in the utilization of the Aadhaar
platform by telecom service providers. In the absence of adequate
safeguards, the biometric data of mobile subscribers can be
seriously compromised and exploited for commercial gain. While
asserting the need for proper verification, the state cannot
G
disregard the countervailing requirements of preserving the
integrity of biometric data and the privacy of mobile phone
subscribers. 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 H
114 SUPREME COURT REPORTS [2018] 8 S.C.R.

A legitimate state aim and should not be either disproportionate or

excessive in their encroachment on individual liberties. Mobile
technology has become a ubiquitous feature of our age. Mobile
phones are not just instruments to facilitate a telephone
conversation. They are a storehouse of data reflecting upon
personal preferences, lifestyles and individual choices. They bear
B
upon family life, the workplace and personal intimacies. The
conflation of biometric data with SIM cards is replete with grave
dangers to personal autonomy. A constitution based on liberal
values cannot countenance an encroachment of this nature. The
decision to link Aadhaar numbers to SIM cards and to enforce a
C regime of e-KYC authentication clearly does not pass
constitutional muster and must stand invalidated. All TSPs shall
be directed by the Union government and by TRAI to forthwith
delete the biometric data and Aadhaar details of all subscribers
within two weeks. The above data and Aadhaar details shall not
be used or purveyed by any TSP or any other person or agency
D
on their behalf for any purpose whatsoever. [Paras 283, 284,
285][1008-G-H; 1009-A, C-F]
5. Money laundering rules
5.1 Parliament enacted a law on money-laundering as part
of a concerted effort by the international community to deal with
E activities which constitute a threat to financial systems and to
the integrity and sovereignty of nations. Rule 9 of the 2005 Rules
requires every reporting entity to carry out client due diligence
at the time of the commencement of an account-based
relationship. Due diligence requires a verification of the identity
F of the client and a determination of whether the client is acting
on behalf of a beneficial owner, who then has to be identified.
[Paras 286, 288][1009-G-H; 1013-E]
Lokniti Foundation v. Union of India (2017) 7 SCC
155; Bombay Dyeing and Mfg v. Bombay Environmental
Action Group (2006) 3 SCC 434 : [2006] 2 SCR 920 –
G
referred to.
5.2 As a result of the amendment to the Rules brought
about in 2017, Rule 9(4) mandates that in the case of a client who
is an individual, who is eligible to be enrolled for an Aadhaar
number, submission of the Aadhaar number is mandatory. Instead
H of furnishing an option to submit one of six OVDs, submission of
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 115

Aadhaar number alone is mandated. Where an Aadhaar number A

has not been assigned, proof of an application for enrolment is
required to be submitted. Under Rule 9(15), the reporting entity
at the time of receipt of an Aadhaar number is under an obligation
to carry out authentication using either the e-KYC authentication
facility or the yes/no authentication provided by UIDAI. If a client
B
who is eligible to be enrolled for Aadhaar and to obtain a PAN
card does not submit its details while commencing an account
based relationship, there is a period of six months reserved for
submission. Those who already have accounts are required to
submit their Aadhaar numbers by a stipulated date. Failure to do
so, renders the account subject to the consequence that it shall C
cease to be operational until compliance is effected. [Para
295][1022-C-F]
5.3 The state has a legitimate aim in preventing money-
laundering. In fact, it is with a view to curb and deal with money-
laundering that the original version of the Master Circular as D
well as its updated version impose conditions for initial and on-
going due diligence. The Reserve Bank has introduced several
reporting requirements including those required to comply with
FATCA norms. The existence of a legitimate state aim satisfies
only one element of proportionality. Requiring every client in
an account based relationship to link the Aadhaar number with a E
bank account and to impose an authentication requirement, is
excessive to the aim and object of the state. There can be no
presumption that all existing account holders as well as every
individual who seeks to open an account in future is a likely
money-launderer. The type of client, the nature of the business F
relationship, the nature and value of the transactions and the
terrorism and laundering risks involved may furnish a basis for
distinguishing between cases and clients. The rules also fail to
make a distinction between opening an account and operating an
account. If an account has been opened in the past, it would be
on the basis of an established identity. The consequences of the G
non-submission of an Aadhaar number are draconian. Non-
submission within the stipulated period will result in a
consequence of the account ceasing to be operational. A perfectly
genuine customer who is involved in no wrongdoing would be
deprived of the use of the moneys and investments reflected in
H
116 SUPREME COURT REPORTS [2018] 8 S.C.R.

A the account, in violation of Article 300A of the Constitution purely

on an assumption that he or she has indulged in money-
laundering. The classification is over-inclusive: a uniform
requirement of such a nature cannot be imposed on every account
based relationship irrespective of the risks involved to the
financial system. The account of a pensioner or of a salaried
B
wage earner cannot be termed with the same brush as a high net-
worth individual with cross-border inflows and outflows. Treating
every account holder with a highly intrusive norm suffers from
manifest arbitrariness. Blocking an account is a deprivation of
property under Article 300A. The Union Government has been
C unable to discharge the burden of establishing that this was the
least intrusive means of achieving its aim to prevent money-
laundering or that its object would have been defeated if it were
not to impose the requirement of a compulsory linking of Aadhaar
numbers with all account based relationships with the reporting
entity. Money-laundering is indeed a serious matter and the Union
D
Government is entitled to take necessary steps including by
classifying transactions and sources which give rise to reasonable
grounds for suspecting a violation of law. But, to impose a uniform
requirement of linking Aadhaar numbers with all account based
relationships is clearly disproportionate and excessive. It fails to
E meet the test of proportionality and suffers from manifest
arbitrariness. [Para 296][1022-G-H; 1023-A-H; 1024-A-B]
6. Savings in Section 59
6.1 Section 59 is a validating provision. It seeks to validate
all the actions of the Central Government prior to the Aadhaar
F Act, which were done under the notifications of 28 January 2009
and 12 September 2015. Section 59 does not validate actions of
the state governments or of private entities. Acts undertaken by
the State governments and by private entities are not saved by
Section 59. The website of the Press Information Bureau of the
G Government of India states that, by the time Aadhaar Act was
notified by the Central government, UIDAI had generated about
100 crore Aadhaar numbers. The collection of biometrics from
individuals prior to the enactment of the Aadhaar Act does not
fall within the scope of the 2009 notification. Having failed to
specify finger prints and iris scans in the notification, the validating
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 117

provision does not extend to the collection of biometric data before A

the Act. The 2009 notification did not provide authority to any
government department or to any entity to collect biometrics.
Since the collection of biometrics was not authorised by the 2009
notification, Section 59 of the Aadhaar Act does not validate these
actions. [Paras 302, 303][1027-B-C, E-G]
B
6.2 The invasion of any right flowing from privacy places a
heavy onus upon the State to justify its actions. Nine judges of
this Court in Puttaswamy categorically held that there must be a
valid law in existence to encroach upon the right to privacy. A
valid law, in this case, would mean a law enacted by Parliament,
which is just, fair and reasonable. Any encroachment upon the C
fundamental right to privacy cannot be sustained by an executive
notification. There is also no merit in the submission of the
Respondents that prior to the enactment of the Aadhaar Act, no
individual has been enrolled under compulsion, and since all
enrolments were voluntary, these cannot be considered to be in D
breach of Article 21 or any other fundamental right. The format
of the first two enrolment forms used by UIDAI, under which
around 90 crore enrolments were done, had no mention of
informed consent or the use of biometrics. Apart from the
existence of a valid law which authorises an invasion of privacy,
Puttaswamy requires that the law must have adequate safeguards E
for the collection and storage of personal data. Data protection,
which is intrinsic to privacy, seeks to protect the autonomy of
the individual. The judgment noted the centrality of consent in a
data protection regime. The Aadhaar Act provides certain
safeguards in Section 3(2) and Section 8(3) for the purposes of F
ensuring informed consent, and in terms of Section 29 read with
Chapter VII in the form of penalties. The safeguards provided
under the Act were not in existence before the enactment of the
Act. The collection of biometrics after the 2009 notification and
prior to the Aadhaar Act suffers from the absence of adequate
safeguards. While a legislature has the power to legislate G
retrospectively, it cannot retrospectively create a deeming fiction
about the existence of safeguards in the past to justify an
encroachment on a fundamental right. At the time when the
enrolments took place prior to the enactment of the Aadhaar Act
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118 SUPREME COURT REPORTS [2018] 8 S.C.R.

A in September 2016, there was an absence of adequate safeguards.

Section 59 cannot by a deeming fiction, as it were, extend the
safeguards provided under the Act to the enrolments done earlier.
This will be impermissible simply because the informed consent
of those individuals, whose Aadhaar numbers were generated in
that period cannot be retrospectively legislated by an assumption
B
of law. Moreover, it is a principle of criminal law that it cannot be
applied retrospectively to acts which were not offences at the
time when they took place. Article 20(1) of the Constitution
provides that “No person shall be convicted of any offence except
for violation of the law in force at the time of the commission of
C the act charged as an offence”. The application of the criminal
provisions of the Act, provided under Chapter VII of the Act
which deals with “Offences and Penalties”, cannot be extended
to the period prior to the enactment of the Aadhaar Act. [Para
304][1028-B-G; 1029-A-D]
D 6.4 Section 43A applies only to bodies corporate and has
no application to government or to its departments. Explanation
(i) defines body corporate to mean any company and to include a
firm, sole proprietorship or other association of individuals
engaged in professional or commercial activities. Personal
information leaked or lost by government agencies will not be
E covered under Section 43A. The scope of Section 66E is limited.
It only deals with the privacy of the “private area” of any person.
It does not deal with informational privacy. The scope of Section
72A is also limited. It only penalises acts of disclosing personal
information about a person obtained while providing services
F under a lawful contract. Section 66C deals with identity theft and
punishes the dishonest or fraudulent use of the unique
identification feature of a person. The Information Technology
Act also does not penalise unauthorised access to the Central
Identities Data Repository. Many of the safeguards which were
introduced by the Aadhaar Act were not comprehended in the
G provisions of the Information Technology Act.[Para 306][1032-
D-F]
K Industries Ltd v. Union of India (2007) 13 SCC 673
: [2007] 12 SCR 136; West Ramnad Electric
Distribution Co. Ltd. v. State of Madras [1963] 2 SCR
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 119

747; State of Mysore v. D. Achiah Chetty, Etc1 (1969) 1 A

SCC 248 : [1969] 3 SCR 55; Hari Singh v. Military
Estate Officer (1972) 2 SCC 239 : [1973] 1 SCR 515;
State of Karnataka v. State of Tamil Nadu (2017) 3 SCC
362 : [2016] 8 SCR 499; Jaora Sugar Mills (P) Ltd. v.
State of Madhya Pradesh [1966] 1 SCR 523; SKG Sugar
B
Ltd. v. State of Bihar (1974) 4 SCC 827 : [1975]
1 SCR 312; Krishna Chandra Gangopadhyaya v.
Union of India (1975) 2 SCC 302 : [1975] Suppl.
SCR 151 – referred to.
6.5 There were several deficiencies in the collection of
biometric data during the period between 2009 and 2016, before C
the Aadhaar Act came into force. The first was the absence of
enabling legislation. As a result, the collection of sensitive
personal information took place without the authority of law.
Second, the notification of 2009 did not authorize the collection
of biometric data. Third, the collection of biometric data was D
without an enabling framework of the nature which the Aadhaar
Act put into place with effect from 2016. The Aadhaar Act
introduced a regime for obtaining informed consent, securing the
confidentiality of information collected from citizens, penalties
and offences for breach and regulated the uses to which the data
which was collected could be put. In the absence of safeguards, E
the collection of biometric data prior of the enactment of Aadhaar
Act 2016 is ultra vires. [Para 317][1041-G-H; 1042-A-B]
State of A P v. McDowell & Co (1996) 3 SCC 709 :
[1996] 3 SCR 721; State of Madhya Pradesh v. Rakesh
Kohli (2012) 6 SCC 312 : [2012] 6 SCR 661; Rajbala F
v. State of Haryana (2016) 2 SCC 445 : [2015] 12
SCR 1106; Ajay Hasia v. Khalid Mujib Sehravardi
(1981) 1 SCC 722 : [1981] 2 SCR 79; Dr. K R
Lakshmanan v. State of T N (1996) 2 SCC 226 : [1996]
1 SCR 395; E P Royappa v. State of Tamil Nadu (1974) G
4 SCC 3 : [1974] 2 SCR 348; Bishambhar Nath Kohli
v. State of Uttar Pradesh [1966] 2 SCR 158; State of
Karnataka v. State of Tamil Nadu (2017) 3 SCC 362 :
[2016] 8 SCR 499; Amarendra Kumar Mohapatra v.
State of Orissa (2014) 4 SCC 583 : [2014] 2 SCR 1031;
H
120 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Shri Prithvi Cotton Mills Ltd v. Broach Borough

Municipality (1969) 2 SCC 283 : [1970] 1 SCR 388 –
referred to.
7. Rule of law and violation of interim orders
7.1 The rule of law is the cornerstone of modern democratic
B societies and protects the foundational values of a democracy.
When the rule of law is interpreted as a principle of
constitutionalism, it assumes a division of governmental powers
or functions that inhibits the exercise of arbitrary State power. It
also assumes the generality of law: the individual’s protection
C from arbitrary power consists in the fact that her personal dealings
with the State are regulated by general rules, binding on private
citizens and public officials alike. It envisages a fundamental
separation of powers among different organs of the State.
Separation of power supports the accountability aspect of the rule
of law. Separation of the judicial and executive powers is an
D essential feature of the rule of law. By entrusting the power of
judicial review to courts, the doctrine prevents government
officials from having the last word on whether they have acted
illegally. The separation of judicial power provides an effective
check on the executive branch. [Para 323][1046-C-E]
E 7.2 Interim orders of courts are an integral element of
judicial review. Interim directions issued on the basis of the prima
facie findings in a case are temporary arrangements till the matter
is finally decided. Interim orders ensure that the cause which is
being agitated does not become infructuous before the final
F hearing. The power of judicial review is not only about the writs
issued by superior courts or the striking down of governmental
action. Entrustment of judicial review is accompanied by a duty
to ensure that judicial orders are complied with. Unless orders
are enforced, citizens will lose faith in the efficacy of judicial review
and in the legal system. When the Aadhaar Act was notified on 25
G March 2016, the interim directions issued by this court were in
operation. Once a law was enacted by Parliament, a statutory
authorisation was brought into existence to enable government
to issue administrative instructions. Hence, compliance with the
interim orders stands obviated upon the enactment of the law.
H [Paras 331, 333][1054-A-B; 1059-A, B-C]
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 121

7.3 Judicial orders, be they interim or final, cannot simply A

be wished away. If governments or citizens were allowed to ignore
judicially enforceable directions, that would negate the basis of
the rule of law. Both propriety and constitutional duty required
Union government to move this Court after the enactment of the
Aadhaar Act for variation of the interim orders. The existence of
B
law (post 2016) is only one aspect to be considered in deciding
the interim arrangement which would hold the field when the
constitutional challenge was pending adjudication before this
Court. Institutions of governance are bound by a sense of
constitutional morality which requires them to abide by judicial
orders. What seems to emerge from the course of action which C
has been followed in the present case by government is a
perception that judicial directions can be ignored on a supposed
construction of the statute. Besides the fact that this construction
is erroneous in law, it is above all, the fundamental duty of this
Court to ensure that its orders are not treated with disdain.
D
[Para 334][1060-C, D-F]
Sahib Ram Jawaya Kapur v. State of Punjab [1955] 2
SCR 225; S G Jaisinghani v. Union of India [1967] 2
SCR 703; Smt Indira Nehru Gandhi v. Shri Raj Narain
(1975) Supp SCC 1 : [1976] SCR 347; State of Tamil
Nadu v. State of Kerala (2014)12 SCC 696; State of E
Bihar v. Bal Mukund Sah (2000) 4 SCC 640 : [2000]
2 SCR 299; Additional District Magistrate, Jabalpur
v. Shivakant Shukla (1976) 2 SCC 521 : [1976] Suppl.
SCR 172; L Chandra Kumar v. Union of India (1997)
3 SCC 261 : [1997] 2 SCR 1186; I R Coelho v. State of F
Tamil Nadu (2007) 2 SCC 1 : [2007] 1 SCR 706;
Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
: [2017] 5 SCR 160; State of M.P. v. Thakur Bharat
Singh [1967] 2 SCR 454; S P Sampath Kumar v. Union
of India (1987) 1 SCC 124 : [1987] 1 SCR 435; K.T.
Plantation (P) Ltd. v. State of Karnataka (2011) 9 SCC G
1 : [2011] 13 SCR 636; State of Assam v. Barak
Upatyaka DU Karmachari Sanstha (2009) 5 SCC 694;
Bhubaneshwar Singh v. Union of India (1994) 6 SCC
77 : [1994] 1 Suppl. SCR 639; P Sambamurthy v. State
H
122 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of Andhra Pradesh (1987) 1 SCC 362 : [1987] 1 SCR

879; Re: Arundhati Roy (2002) 3 SCC 343 : [2002]
2 SCR 213 – relied on.
Unique Identification Authority of India v. Central
Bureau of Investigation SLP (Crl.) No. 2524/2015; All
B Bengal Minority Students Council v. Union of India WP
(Civil) No. 686/2016 – referred to.
7.4 Constitutional morality requires that the faith of the
citizens in the constitutional courts of the country be maintained.
Disobedience of the interim orders of this Court and its
C institutional authority, in the present case, has made a societal
impact. It has also resulted in denial of subsidies and other benefits
essential to the existence of a common citizen. Constitutional
morality therefore needs to be enforced as a valid response to
these arbitrary acts. Non-compliance of the interim orders of this
Court is contrary to constitutional morality. The brazen manner
D in which notifications have been issued making Aadhaar
mandatory, despite the interim order of this Court is a matter of
serious concern. Deference to the institutional authority of the
Supreme Court is integral to the values which the Constitution
adopts. The postulate of a limited government is enforced by
E the role of the Supreme Court in protecting the liberties of citizens
and holding government accountable for its transgressions. The
authority of this Court is crucial to maintaining the fine balances
of power on which democracy thrives and survives. The orders
of the Court are not recommendatory – they are binding
directions of a constitutional adjudicator. Dilution of the
F institutional prestige of this Court can only be at the cost of
endangering the freedom of over a billion citizens which judicial
review seeks to safeguard. [Para 337][1062-D; 1063-A-D]
Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1 – followed.
G
Aycaguer v. France Application no. 8806/12; Digital
Rights Ireland Ltd v. Minister C 293/12 and C 594/12 –
referred to.
Association pour la promotion de l’image Conseil d’
Etat in France, 26 October 2011– referred to.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 123

Case Law Reference A

[In the judgment of Sikri, J.]
[1954] SCR 1077 referred to Para 18
(2010) 5 SCC 318 referred to Para 22
(2010) 13 SCC 45 referred to Para 22 B
[2013 ] 4 SCR 66 referred to Para 23
(2017) 10 SCC 1 followed Para 45
[1959] Supp 1 SCR 528 relied on Para 72
C
[1950] SCR 594 relied on Para 72
[1978] 1 SCR 641 relied on Para 72
[1977] 2 SCR 790 relied on Para 72
[1996] 1 SCR 278 relied on Para 72
D
[2017] 7 SCR 1 relied on Para 75
[2012] 6 SCR 661 referred to Para 76
[2008] 4 SCR 1 referred to Para 76
[1996] 3 SCR 721 referred to Para 76
E
[2015] 12 SCR 1106 referred to Para 76
[2017] 7 SCR 797 relied on Para 77
[1996] 1 SCR 395 relied on Para 77
[1978] 2 SCR 621 relied on Para 77 F
[1975] 3 SCR 946 referred to Para 81
[1964] 1 SCR 332 referred to Para 84
(2018) 5 SCC 1 relied on Para 95
(2014) 5 SCC 438 relied on Para 96 G
[2015] 8 SCR 289 relied on Para 98
[2016] 4 SCR 638 relied on Para 99
[2011] 4 SCR 1057 relied on Para 101
H
124 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (2016) 7 SCC 353 relied on Para 118

[2010] 5 SCR 381 referred to Para 132
[2004] 5 Suppl. SCR 833 referred to Para 136
[2010] 6 SCR 291 referred to Para 237
B (2011) 14 SCC 331 referred to Para 251
(2013) 6 SCC 620 referred to Para 252
[1973] Suppl. SCR 1 followed Para 264
(2001) 5 SCALE 303 relied on Para 270
C [1996] 2 Suppl. SCR 331 relied on Para 275
[1992] 3 SCR 658 relied on Para 275
[1993] 1 SCR 594 relied on Para 275
[1985] SCR 2 Suppl. 51 relied on Para 275
D
[1981] 2 SCR 516 relied on Para 276
[2003] 2 SCR 1136 relied on Para 310
[2016] 3 SCR 865 relied on Para 312
(2007) 15 SCC 49 relied on Para 327
E
[2014] 3 SCR 359 relied on Para 347
[1996] 10 Suppl. SCR 321 relied on Para 348
[1996] 8 Suppl. SCR 464 referred to Para 353
[2014] 9 SCR 1063 referred to Para 353
F
[1963] 2 SCR 747 followed Para 371
[1966] 2 SCR 158 relied on Para 371
[1969] 3 SCR 55 relied on Para 372
G [2016] 8 SCR 499 relied on Para 372
[1967] 2 SCR 454 referred to Para 376
[1975] 3 SCR 946 referred to Para 376
[1987] 1 SCR 435 referred to Para 376
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 125

(1991) 4 SCC 699 referred to Para 376 A

[2007] 1 SCR 706 referred to Para 376
[2011] 8 SCR 1028 referred to Para 376
[1981] 1 SCR 206 referred to Para 378
[1973] Suppl. SCR 1 referred to Para 379 B
[2014] 9 SCR 965 referred to Para 381
(2018) SCC Online SC 661 referred to Para 384
(1991) Supp. 2 SCC 608 referred to Para 393
C
[1993] 3 SCR 719 referred to Para 394
[1994] 2 SCR 644 referred to Para 396
[2007] 1 SCR 317 referred to Para 396
[1992] 1 SCR 686 referred to Para 396
D
[2006] 5 Suppl. SCR 1 relied on Para 397
(2014) 11 SCC 415 referred to Para 398
(2016) 3 SCC 183 referred to Para 399
[1963] Supp 1 SCR 275 referred to Para 400
E
[2010] 3 SCR 1059 referred to Para 400
AIR 1960 SC 1186 referred to Para 400
AIR 1963 Pat 16 referred to Para 401
[1969] 1 SCR 478 referred to Para 401 F
[1957] SCR 399 referred to Para 402
[2002] 3 Suppl. SCR 220 referred to Para 402
[1994] 5 Suppl. SCR 526 referred to Para 402
[2011] 8 SCR 725 relied on Para 430 G
[1995] 1 SCR 877 relied on Para 432
(2017) 7 SCC 155 relied on Para 439

H
126 SUPREME COURT REPORTS [2018] 8 S.C.R.

A In the judgment of Ashok Bhushan, J. (Partly concurring)

[1954] SCR 1077 referred to Para 24
[1964] SCR 332 referred to Para 24
[2017] 10 SCR 1 followed Para 37
B [2017] 7 SCR 1 referred to Para 56
(2014) 5 SCC 438 referred to Para 125
[2013] 8 SCR 631 relied on Para 195
(2011) 14 SCC 331 referred to Para 210
C
(2013) 14 SCC 368 referred to Para 211
[1981] 2 SCR 516 relied on Para 213
(2013) 11 SCC 783 referred to Para 230
[2014] 3 SCR 359 referred to Para 240
D
[1996] 10 Suppl. SCR 321 referred to Para 243
[2010] 5 SCR 381 held inapplicable Para 249
[1962] SCR 10 relied on Para 252
[2014] 9 SCR 1063 relied on Para 262
E
[1952] SCR 597 relied on Para 268
[2000] 4 Suppl. SCR 693 relied on Para 269
[2003] 6 Suppl. SCR 1235 relied on Para 270

F (2016) 7 SCC 353 relied on Para 271

[1963] SCR 747 relied on Para 289
[1954] SCR 779 relied on Para 289
[1966] SCR 158 relied on Para 296
G [1973] 1 SCR 515 followed Para 297
[1975] Suppl. SCR 151 relied on Para 298
[2003] 5 Suppl. SCR 751 relied on Para 299
[1969] 3 SCR 55 referred to Para 300
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 127

[1998] 3 SCR 421 relied on Para 302 A

[2016] 8 SCR 499 relied on Para 303
(2017) 7 SCC 155 distinguished Para 326
[1962] Suppl. SCR 697 held inapplicable Para 339
[1975] 3 SCR 619 held inapplicable Para 340 B
[1979] 1 SCR 820 held inapplicable Para 340
(1984) 4 SCC 27 held inapplicable Para 340
[2003] 1 SCR 975 held inapplicable Para 340
C
[2011] 14 SCR 657 referred to Para 341
[1992] 1 SCR 686 relied on Para 350
[2007] 1 SCR 317 relied on Para 351
(2014) 11 SCC 415 not correct law Para 354
D
(2016) 3 SCC 183 not correct law Para 354
[2017] 7 SCR 1 relied on Para 365
[2017] 7 SCR 797 relied on Para 367
[2013] 13 SCR 1 relied on Para 375
E
In the judgment of Dr. D. Y. Chandrachud, J. (Dissenting)
(2017) 10 SCC 1 followed Para 204
[2012] 7 SCR 644 referred to Para 233
[1978] 2 SCR 621 relied on Para 251 F
[1997] 3 Suppl. SCR 404 relied on Para 251
[1999] 1 SCR 669 relied on Para 251
[2007] 12 SCR 991 relied on Para 251
(2014) 5 SCC 438 relied on Para 251 G
[1996] 1 Suppl. SCR 442 relied on Para 251
[2011] 8 SCR 1028 relied on Para 251
[2017] 7 SCR 1 referred to Para 272
H
128 SUPREME COURT REPORTS [2018] 8 S.C.R.

A [1996] 3 SCR 721 referred to Para 273

[2012] 6 SCR 661 referred to Para 273
[2015] 12 SCR 1106 referred to Para 273
[2017] 7 SCR 797 relied on Para 274
B [1981] 2 SCR 79 referred to Para 274
[1996] 1 SCR 395 referred to Para 274
[1974] 2 SCR 348 referred to Para 274
[1997] 6 Suppl. SCR 717 referred to Para 274
C
[2004] 3 SCR 982 referred to Para 274
[2011] 11 SCR 1094 referred to Para 274
[2011] 14 SCR 1 referred to Para 274
[2011] 13 SCR 636 referred to Para 274
D
[2012] 5 SCR 547 referred to Para 279
(2017) 7 SCC 155 referred to Para 280
[2006] 2 SCR 920 referred to Para 290
[2007] 12 SCR 136 referred to Para 290
E
[1963] 2 SCR 747 referred to Para 299
[1969] 3 SCR 55 referred to Para 299
[1973] 1 SCR 515 referred to Para 299

F [2016] 8 SCR 499 referred to Para 299

[1966] 1 SCR 523 referred to Para 312
[1975] 1 SCR 312 referred to Para 312
[1975] Suppl. SCR 151 referred to Para 312
G [1966] 2 SCR 158 referred to Para 318
[2016] 8 SCR 499 referred to Para 318
[2014] 2 SCR 1031 referred to Para 321
[1970] 1 SCR 388 referred to Para 322
H [1955] 2 SCR 225 relied on Para 324
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 129

[1967] 2 SCR 703 relied on Para 324 A

[1973] Suppl. SCR 1 followed Para 324
[1976] SCR 347 relied on Para 324
(2014) 12 SCC 696 relied on Para 324
[2000] 2 SCR 299 relied on Para 324 B
[1965] 1 SCR 413 relied on Para 325
[1976] Suppl. SCR 172 relied on Para 325
[1997] 2 SCR 1186 relied on Para 325
C
[2007] 1 SCR 706 relied on Para 326
[2017] 5 SCR 160 relied on Para 327
[1967] 2 SCR 454 relied on Para 328
[1987] 1 SCR 435 relied on Para 329
D
[2011] 13 SCR 636 relied on Para 330
(2009) 5 SCC 694 relied on Para 331
[1994] 1 Suppl. SCR 639 relied on Para 333
[1987] 1 SCR 879 relied on Para 335
E
[2002] 2 SCR 213 relied on Para 336
(2014) 11 SCC 415 overruled Para 339
(2016) 3 SCC 183 overruled Para 339
[1965] SCR 413 relied on Para 339 F
[2010] 3 SCR 1059 relied on Para 339
[2007] 1 SCR 1 relied on Para 339
[1963] Supp 1 SCR 275 relied on Para 339
AIR 1960 SC 1186 relied on Para 339 G
[2002] 3 Suppl. SCR 220 held inapplicable Para 115
[1957] SCR 399 relied on Para 114
[2008] 12 SCR 1083 relied on Para 114
H
130 SUPREME COURT REPORTS [2018] 8 S.C.R.

A CIVIL / CRIMINAL ORIGINAL / APPELLATE

JURISDICTION: Writ Petition (Civil) No. 494 of 2012.
Under Article 32 of the Cconstitution of India.
WITH
W.P. (C) Nos.833, 829 and 932/2013
B
W.P.(C) No.37 and 220 of 2015
W.P. (C) Nos. 231 and 797 of 2016
W.P.(C) Nos. 342, 372, 841, 1058, 966, 1014, 1002 and 1056 of
2017
C SLP(Crl.) No. 2524/2014
T.C.(C) Nos.151, 152, 1797 and 1796 of 2013
T.P.(C) Nos.313 and 312 of 2014
T.P.(C) No. 921/2015
D Conmt.Pet.(C) No.144/2014 In W.P.(C) No.494/2012
Conmt.Pet.(C) No.674/2015 In W.P.(C) No.829/2013
Conmt.Pet.(C) No.470/2015 In W.P.(C) No.494/2012
Conmt.Pet.(C) No.444/2016 In W.P.(C) No.494/2012
Conmt.Pet.(C) No.608/2016 In W.P.(C) No.494/2012
E
Conmt.Pet.(C) No.844/2017 In W.P.(C) No.494/2012
Conmt.Pet.(C) No.34/2018 in W.P.(C) No.1014/2017
K.V. Venugopal, AG, Tushar Mehta, ASG, Anil Grover, AAG, Gopal
Subramonium, Ms. Meenakshi Arora, K.V. Viswanathan, Shyam Divan,
F C.U. Singh, Shyam Divan, P. Chidambaram, Anand Grover,
Arvind P. Datar, Rakesh Dwivedi, Jayant Bhushan, V. Giri, Sajan
Poovayya, P.V. Surendra Nath, Neeraj Kishan Kaul, Sr. Advs., Jaideep
Singh, Anirben Sen, Gopal Thiruman, Pavan Bhushan, Jayavardhan Singh,
Ms. Vaidruti Mishra, Ms. Chitrangada R., Vishwajeet Singh, Hitesh Saini,
Vivek Raja, Anish Kumar Gupta, Avdhesh Kumar Singh, Ms. Harsha,
G Mrs. Rita Gupta, Ms. Deepshikha Bharati, Mrs. Geetha Kovilan, Rahul
Narayan, Ms. Ananya Ghosh, Ms. Bhabna Das, Ms. Vrinda Bhandari,
Gautam Bhatia, N. Sai Vinod, (for Mr. Shadan Farasat, Adv.) Pratap
Venugopal, Ms. Surekha Rmaan, Prasanna S., Udayaditya Banerjee,
Ms. Niharika, Ms. Kanika Kalaiyarasan, ( for M/s. K.J. John and Co.),
H M/s. Meharia & Company, Ms. Jyoti Mendiratta Abhishek Atrey,
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 131

Ms. Vidyottma, Pavan Bhushan, Jayavardhan Singh, Ms. Hima A

Lawrence, Hitesh Saini, Ms. Talha Rahman, Prateek Chadha, Vivek
Raja, Atin, Ms. Archana Pathak Dave, Muhammad Ali Khan,
Vikramaditya, R.V. Prabhat, Rajesh Inamdar, Gaurav Gupta, Abhishek
Jebraj, Omar Hoda, Jaspal Singh, Ms. Prianka Rao Khan, Namrah Nasir,
Zafar Khurshid, Gautam Talukdar, Prashant Bhushan, Vipin Nair,
B
P. B. Suresh, Ms. Samiksha Godiyal, Abhay Pratap Singh,V. K. Biju,
Prithu Garg, Ms. Kritika Bhardwaj, Bhanu Pratap Singh, Pranaya Kumar
Mohapatra, Suhaan Mukerji, Ms. Astha Sharma, Vishal Prasad, Amjid
Maqbool, Amit Verma (for PLR Chambers & Co.), Ms. Priyam Lizmary
Cherian, Ms. Nehmat Kaur, Ms. Stuti Vatsa, Varun Mathew, Ms. Upasana
Garnaik, Anando Mukherjee, Ms. Pragya Baghel, Apar Gupta, Deepayan C
Mandal, Rahul Unnikrishnan, N. Sai Vinod (for T.V.S. Raghavendra
Sreyas, Adv.) Zoheb Hossain, Ankur Talwar, Ms. Shraddha Deshmukh,
Ms. Chavanya L., Rohit Bhat, Rajat Nair, Ms. Adeeba Mujahid, Kanu
Aggarwal, Rajendra Dangwal, Piyush Goyal, Palash Maheshwari, Vivek
Gurnani, Ms. Priyanka Walesha, Ms. Aarti Sharma, Santosh Kr.
D
Vishwakarma, S.S. Shamshery, Ms. Shardha Deshmukha, Zoheb
Hossain, R. Bala Subramaniyam, Raj Bahadur, Harish V. Shenkar,
Ms. Rukmini Bobde, Ms. Shradha Deshmukh (for M.K. Maroria, Adv.),
Ms. Sansriti Pathak, Ms. Sansriti Pathak (for Ms. Hemantika Wahi,
Adv.) Varinder Kumar Sharma, V. G. Pragasam, S. Prabu
Ramasubramanian, Sanjay Kapur, Ms. Mansi Kapur, Ms. Megha E
Karnwal, Ms. Shubhra Kapur, Gopal Sankaranarayanan, Ms. Savita
Singh, Shrutanjay Bhardwaj, Ms. Veera Mahuli, Ms. Ruchi Kohli, Ranjan
Mukherjee, K.V. Kharlyngdoh, Daniel Stone Lyngdoh, Zoheb Hossain,
Nishant Ramakantrao Katneshwarkar, Mishra Saurabh, Manish
Vashishtha, Jayant Mohan, Jagjit Singh Chhabra, Harish Pandey, Garvesh
F
Kabra, Ms. Sauya Mehrotra, Anip Sachthey, Mrs. Anil Katiyar, Guntur
Prabhakar, Ms. Prerna Singh, Abhinav Mukerji, Satish Kumar, Shivam
Kumar, Sanjay Kumar Visen, Tapesh Kumar Singh, Aditya Pratap Singh,
Mohd. Waquas, Jayesh Gaurav, Ratan Kr. Choudhuri, M. Shoeb Alam,
Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, Ms. Anitha Shenoy,
Aniruddha P. Mayee, T.G. Narayanan Nair, M/s. Arputham Aruna and G
Co., Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Suhaan Mukerji,
Vishal Prasad, Shuvodeep Roy, K.V. Vijayakumar, Ms. Maitreyee Mishra,
Ms. Kiran Karan Chawla, Milind Kumar, Ms. Aishwarya Bhati,
Ms. Rashmi Singhania, Gopal Singh, Dinkar Kalra, Mohit D. Ram,
Kuldeep S. Parihar, H.S. Parihar, S. Udaya Kumar Sagar, Mrityunjai
H
132 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Singh, Wills Mathews (for Mr. Rabin Majumder), Jogy Scaria,

M/s. Meharia & Co., M.P. Vinod, Ms. Nina Gupta, Ms. Shereen Shukla,
Mudit Sharma, Harsh Kaushik, M/s. Khaitan & Co., K.R. Sasiprabhu,
Chanchal Kumar Ganguli, Nishe Rajen Shonker, Ms. Anu K. Joy, Manav
Vohra, Krishna Dev J., Mohammed Sadique T.A., Ms. Svadha Shankar,
Amith Krishna, Anwar Alim, Joseph Aristotle S., Mrs. Priya Aristotle,
B
Javedur Rehman, Aditya Bhat, Karan Bharihoke, Bhupesh Narula,
K.V. Jagdishvaran, Mrs. G. Indira, Mrs. K. Enatoli Sema, Edward Belho,
Amit Kumar Singh, K. Luikang Michael, Leisangthem Roshmani Kh.,
Ms. Maibam Babina, Ajay Bansal, Kuldip Singh, Gaurav Yadava, Mahesh
Agarwal, Priyadarshi Banerjee, Pratibhanu Singh Kharola, Saransh
C Kumar, Saransh Jain, Madhavam Sharma, Meka Venkata Rama Krishna,
Vivek Jain (for Mr. E.C. Agrawala), Ms. Rasmita R. Chandra,
Ms. Lekha Sudhakaran, Nipun Saxena, Namit Saxena, Devanshu Sajlan,
Aditya P. Arora, Ms. Pallavi Pratap, Ms. Bina Madhavan, Ms. Shreyasi
Kunwar (for M/s. Lawyer S Knit & Co.) Sriram P., Ms. Khushbu Jain,
Vishnu Shankar M.S., Ms. Athira G. Nair, Rahul Matthan, Syed Jafar
D
Alam, Ms. Shivani Khandekar, Thomas J. Vallianeth, Samar Kacchwaha,
B. Vivekananda, Ashok Mathur, R. Sudhinder, Ms. Saumya Mehrotra,
Ms. Amrita Sarkar, S. Mukherjee, Manoj K. Mishra, Umesh Dubey,
Ashish Kumar Mishra, Ms. Radhika Chaturvedi, Hitesh Kumar Sharma,
S.K. Rajora (for Dr. (Mrs.) Vipin Gupta) Ms. Pooja Dhar, K. Rajeev,
E Fuzail Ahmad Ayyubi, Ms. Deepali, Ibaad Mushtaq, Ms. Aditi Gupta,
Jawad Tariq, Dr. Anindita Pujari, Ms. Kavita Bhardwaj, Pukhrambam
Ramesh Kumar, Ms. Aparna Bhat, Mayank Sapra, Dr. Lalit Bhasin, Sai
Krishna Rajgopala, Julien George, Ms. Arundhati Gopal, Arjun
Ranganathan and Ms. Vaneesha Jain (for Mr. Nikhil Nayyar), Advs.,
for the appearing parties.
F
Sameer H. Shahani (In-person in Conmt. Petition (C) No. 34 of
2018 in W.P. (C) NO. 1014 of 2017).
The following Judgments of the Court were delivered by
A. K. SIKRI, J. (For Chief Justice, himself and
G A. M. Khanwilkar, J.)
Introduction and Preliminaries:
It is better to be unique than the best. Because, being
the best makes you the number one, but being unique
makes you the only one.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 133
[A. K. SIKRI, J.]

2. ‘Unique makes you the only one’ is the central message of A

Aadhaar, which is on the altar facing constitutional challenge in these
petitions. ‘Aadhaar’ which means, in English, ‘foundation’ or ‘base’,
has become the most talked about expression in recent years, not only in
India but in many other countries and international bodies. A word from
Hindi dictionary has assumed secondary significance. Today, mention
B
of the word ‘Aadhaar’ would not lead a listener to the dictionary meaning
of this word. Instead, every person on the very mentioning of this word
‘Aadhaar’ would associate it with the card that is issued to a person
from where he/she can be identified. It is described as an ‘Unique
Identity’ and the authority which enrols a person and at whose behest
the Aadhaar Card is issued is known as Unique Identification Authority C
of India (hereinafter referred to as ‘UIDAI’ or ‘Authority’). It is
described as unique for various reasons. UIDAI claims that not only it
is a foolproof method of identifying a person, it is also an instrument
whereby a person can enter into any transaction without needing any
other document in support. It has become a symbol of digital economy
D
and has enabled multiple avenues for a common man. Aadhaar scheme,
which was conceptualised in the year 2006 and launched in the year
2009 with the creation of UIDAI, has secured the enrolment of almost
1.1 billion people in this country. Its use is spreading like wildfire, which
is the result of robust and aggressive campaigning done by the
Government, governmental agencies and other such bodies. In this way E
it has virtually become a household symbol. The Government boasts of
multiple benefits of Aadhaar.
3. At the same time, the very scheme of Aadhaar and the
architecture built thereupon has received scathing criticism from a section
of the society. According to them, Aadhaar is a serious invasion into the F
right to privacy of persons and it has the tendency to lead to a surveillance
state where each individual can be kept under surveillance by creating
his/her life profile and movement as well on his/her use of Aadhaar.
There has been no other subject matter in recent past which has evoked
the kind of intensive and heated debate wherein both sides, for and against,
argue so passionately in support of their respective conviction. The G
petitioners in these petitions belong to the latter category who apprehend
the totalitarian state if Aadhaar project is allowed to continue. They are
demanding scrapping and demolition of the entire Aadhaar structure
which, according to them, is anathema to the democratic principles and
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134 SUPREME COURT REPORTS [2018] 8 S.C.R.

A rule of law, which is the bedrock of the Indian Constitution. The

petitioners have challenged the Aadhaar project which took off by way
of administrative action in the year 2009. Even after Aadhaar got a
shield of statutory cover, challenge persists as the very enactment known
as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016 (hereinafter referred to as the ‘Aadhaar Act’)
B
is challenged as constitutionally impermissible. The wide range of issues
involved in this case is evident from the fact that it took almost four
months for the parties to finish their arguments in these cases, and the
Court witnessed highly skilled, suave, brilliant and intellectual advocacy,
with the traces of passions as well.
C 4. The issue has generated heated public debate as well. Even
outside the Court, there are groups advocating in favour of the Aadhaar
scheme and those who are stoutly opposing the same. Interestingly, it is
not only the commoners who belong to either of the two groups but
intelligentsia is also equally divided. There have been number of articles,
D interviews for discourses in favour of or against Aadhaar. Those in
favour see Aadhaar project as ushering the nation into a regime of good
governance, advancing socio-economic rights, economic prosperity etc.
and in the process they claim that it may make the nation a world leader.
Mr. K.K. Venugopal, learned Attorney General for India, referred to the
commendations by certain international bodies, including the World Bank.
E We clarify that we have not been influenced by such views expressed
either in favour or against Aadhaar. Those opposing Aadhaar are
apprehensive that it may excessively intrude into the privacy of citizenry
and has the tendency to create a totalitarian state, which would impinge
upon the democratic and constitutional values. Some such opinions of
F various persons/bodies were referred to during the arguments.
Notwithstanding the passions, emotions, annoyance, despair, ecstasy,
euphoria, coupled with rhetoric, exhibited by both sides in equal measure
during the arguments, this Court while giving its judgment on the issues
involved is required to have a posture of calmness coupled with objective
examination of the issues on the touchstone of the constitutional provisions.
G
5. Initiative in spearheading the attack on the Aadhaar structure
was taken by the petitioners, namely, Justice K.S. Puttaswamy (Retd.)
and Mr. Pravesh Khanna, by filing Writ Petition (Civil) No. 494 of 2012.
At that time, Aadhaar scheme was not under legislative umbrella. In the
writ petition the scheme has primarily been challenged on the ground
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 135
[A. K. SIKRI, J.]

that it violates fundamental rights of the innumerable citizens of India, A

namely, right to privacy falling under Article 21 of the Constitution of
India. Few others joined the race by filing connected petitions. Series
of orders were passed in this petition from time to time, some of which
would be referred to by us at the appropriate stage. In 2016, with the
passing of the Aadhaar Act, these very petitioners filed another writ
B
petition challenging the vires of the Act. Here again, some more writ
petitions have been filed with the same objective. All these writ petitions
were clubbed together. There are number of interventions as well by
various individuals, groups, NGOs, etc., some opposing the petitions and
some supporting the Aadhaar scheme.
6. Before we go into the premise on which the attack is laid on C
the constitutional validity of the Aadhaar project and the Aadhaar Act, it
would be apposite to take note of the events in chronological order that
shaped the formulation, take off and implementation of the Aadhaar
scheme.
7. On March 03, 2006, approval was given by the Department of D
Information Technology, Ministry of Communications and Information
Technology, Government of India for the project titled ‘Unique
Identification for BPL Families’ to be implemented by the National
Informatics Centre (NIC) for over a period of twelve months. As a
result, a Processes Committee was set up on July 03, 2006 to suggest E
the process for updation, modification, addition and deletion of data and
fields from the core database to be created under the Unique Identification
for BPL Families project. This Committee, on November 26, 2006,
prepared a paper known as ‘Strategic Vision Unique Identification of
Residents’. Based thereupon, the Empowered Group of Ministers
(EGoM) was set up on December 04, 2006, to collate the National F
Population Register under the Citizenship Act, 1955 and the Unique
Identification Number project of the Department of Information
Technology. The EGoM was also empowered to look into the
methodology and specific milestones for early and effective completion
of projects and to take a final view on these projects. The EGoM was G
composed of the then Ministers of External Affairs, Home Affairs, Law,
Panchayati Raj and Communications and Information Technology and
the then Deputy Chairman, Planning Commission.
8. Various meetings on the Unique Identification (hereinafter
referred to as ‘UID’) project were held from time to time. In the fourth H
136 SUPREME COURT REPORTS [2018] 8 S.C.R.

A meeting held on December 22, 2006, various aspects of proposed data

elements and their formats were discussed. Thereafter, in its fifth meeting
held on April 27, 2007, it was decided that the evolution of UID database
would be in three stages in principle. The Committee further decided
that linkage with major partner databases such as Household Survey of
RD and the individual State Public Distribution System (PDS) databases
B
should be taken up in a phased manner. On June 11, 2007, at the final
stage of the project, a presentation on the UID project was made to the
then Prime Minister by the Cabinet Secretary. The sixth meeting of the
UID project was held on June 15, 2007. The Committee, inter alia,
took the following decisions:
C (i) The numbering format of 11 digits was approved.
(ii) The need for UID authority to be created by an executive
order under the aegis of the Planning Commission was appreciated
in order to ensure pan-departmental and neutral identity for the
authority.
D
(iii) The proposal for creation of Central and State UIDs was
approved.
(iv) Department of Information Technology (DIT) was directed
to work out modalities for linkage with Election Commission and
E initiate discussions with MoRD and PDS for linkage.
(v) In principle, approval of proposed sequence for phasing plan
was granted.
9. In the seventh meeting held on August 30, 2007, the proposed
administrative framework and structure of UID authority and manpower
F requirement, including financial implications, was discussed. It was
decided that a detailed proposal based on the resource model be presented
to the Committee for its ‘in principle’ approval. At this stage, EGoM
convened its first meeting on November 27, 2007. At this meeting, a
consensus emerged on the following points:
G (i) There is a clear need for creating an identity related resident
database, regardless of whether the database is created on a de
novo collection of data or is based on an already existing data
(such as the Election Commission’s Voter List).
(ii) Additionally, there is a critical need to create an institutional
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 137
[A. K. SIKRI, J.]

mechanism that would ‘own’ the database and be responsible for A

its maintenance and updating.
(iii) The next meeting is to consider topics relating to collating the
National Population Register (NPR) and UID schemes, including
methodology, effective implementation techniques, identification
of the institutional mechanism stated above, and the time schedule B
for putting the scheme into operation.
A series of meetings took place thereafter to work out the
modalities of the programme. Certain issues were raised therein
and to address those issues, a Committee of Secretaries was
formed. The said Committee gave its recommendations which C
were discussed by EGoM. After approving the Aadhaar Scheme
in principle, it instructed the Cabinet Secretary to convene a
meeting to finalise the detailed organisational structure of the UID.
10. After considering the recommendation of the Cabinet Secretary,
Notification No. A-43011/02/2009-Admn.I was issued on January 28, D
2009 by the Government of India which constituted and notified the
UIDAI as an attached office under the aegis of the Planning Commission.
Consequent to the constitution of UIDAI, allocation of Rs.147.31 crores
for Phase I of Aadhaar enrolments was approved by the Finance Minister
on the recommendation of the Standing Committee on Finance. Demo-
Official letter dated February 25, 2009, was sent by the Secretary, E
Planning Commission to all Chief Secretaries of 35 States/Union
Territories apprising them of their roles and responsibilities of the States/
Union Territories in implementation of UIDAI, such as appointment of
the State/UT UID Commissioners, logistics support and coordination
with various departments and State units. F
As they say, rest is history, which we recapitulate in brief
hereinafter.
11. A core group was set up to advice and further the work related
to UIDAI. Budgets were allocated to UIDAI to enable it to undertake
its task. Staff was also allocated to it. Meetings of the core group took G
place from time to time. The core group, inter alia, decided that it was
better to start with the electoral roll database of 2009 for undertaking
the UIDAI project. The status of digitisation of PDS records, state-
wise, was sought to be sent from the Department of Food and Public
Distribution to the Standing Commission/UID. This and other steps taken
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138 SUPREME COURT REPORTS [2018] 8 S.C.R.

A in this direction culminated in issuance of Notification dated July 02,

2009 whereby Mr. Nandan Nilekani was appointed as the Chairman of
UIDAI for an initial tenure of five years in the rank and status of a
Cabinet Minister. He assumed charge on July 24, 2009. Thereafter, the
Prime Minister’s Council of UIDAI was constituted on July 30, 2009
which held its first meeting on August 12, 2009 where the Chairman of
B
UIDAI made detailed representation on the broad strategy and approach
of the proposed UID project. One of the proposals was to provide a
legislative framework for UID at the earliest so that it could have the
legal sanction to perform its function. Some other Committees like the
Biometrics Standard Committee, Demographic Data Standards and
C Verification Procedure Committee were set up as a support system to
the project, which submitted their respective reports in December 2009.
Even a Cabinet Committee on UID was constituted vide orders dated
October 22, 2009 which was headed by the Prime Minister with the aim
to cover all issues relating to UIDAI, including its organisation, policies,
programmes, schemes, funding and methodology to be adopted for
D
achieving its objectives.
12. The matter was addressed in the Seventeenth Finance
Commission Report also which was tabled in the Parliament on February
25, 2010. In this report, the Finance Commission suggested targeting of
subsidies through UIDAI. By April 2010, UIDAI came out with its
E Strategy Overview. This Overview describes the features, benefits,
revenue model and timelines of the UIDAI project. Furthermore, it
outlined the goal of the UID to serve as a universal proof of identity,
allowing residents to prove their identities anywhere in the country. The
project would give the Government a clear view of India’s population,
F enabling it to target and deliver services effectively, achieve greater
returns on social investments and monitor money and resource flows
across the country. It was felt that crucial to the achievement of this
goal is the active participation of the central, state and local Governments
as well as public and private sector entities. Only with their support will
the project be able to realise a larger vision of inclusion and development
G in India.
13. A Cabinet Note bearing No. 4(4)/57/2010/CC-UIDAI for the
Cabinet Committee on UIDAI was submitted on May 12, 2010. The
Note outlined a brief background of UIDAI, proposed an approach for
collection of demographic and biometric attributes of residents for the
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 139
[A. K. SIKRI, J.]

UID project and sought approval of the Cabinet Committee for adoption A
of the aforesaid approach and suggested that the same standards and
processes be adhered to by the Registrar General of India for the NPR
exercise and all other Registrars in the UID system. Rationale for
inclusion of iris biometrics was also submitted with the aforesaid Cabinet
Note to explain the need for capturing iris scans at the time of capturing
B
biometric details.
14. By September 2010 enrolment process of Aadhaar began with
the nationwide launch of the Aadhaar project. In December 2010, UIDAI
came out with a report on enrolment process known as ‘UID Enrolment
Proof-of-Concept Report’ studying enrolment proof-of-concept in three
rural areas of Karnataka, Bihar and Andhra Pradesh published by the C
UIDAI. According to this report, ‘the biometric matching analysis of
40,000 people showed that the accuracy levels achieved by both iris and
ten fingerprints were more than an order of magnitude better compared
to using either of the two individually. The multi-modal enrolment was
adequate to carry out de-duplication on a much larger scale, with D
reasonable expectations of extending it to all residents of India’.
15. Going by the recommendation of the Chairman of UIDAI for
providing legislative framework to UIDAI, a Bill was introduced in the
Rajya Sabha on December 03, 2010 known as ‘National Identification
Authority of India Bill, 2010’. E
16. Various other steps were taken to smoothen the process of
enrolment. There were studies from time to time on the effectiveness
of the enrolment process. Notifications/orders were also issued by the
Reserve Bank of India stating that an Aadhaar letter would be recognised
by Banks to open bank accounts for a resident. Similar Orders/ F
Notifications were issued by other authorities as well. On the first
anniversary of Aadhaar launch, which fell on September 29, 2011,
announcement was made that 10 crores enrolments and generation of
more than 3.75 crores of Aadhaar had taken place. Some of the reports
submitted in due course of time, which are relevant for our purposes,
are taken note of at this stage: G
(i) Report of the Task Force on an Aadhaar-Enabled Unified
Payment Infrastructure for the direct transfer of subsidies on
Kerosene, LPG and Fertilizer.

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140 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) In March 2012, Fingerprint Authentication Report was

submitted to UIDAI. This Report showcased the high accuracy
rates of using fingerprints to authenticate identities. The study
conducted in the rural setting representing typical demography of
the population established that it is technically possible to use
fingerprint to authenticate a resident in 98.13% of the population.
B
The accuracy of 96.5% can be achieved using one best finger
and 99.3% can be achieved using two fingers. Further
improvement is possible if the device specifications are tightened
to include only the best devices and certain mechanical guide is
used to aid proper placement of the finger. It was also
C demonstrated through benchmarking that the authentication
infrastructure is able to sustain one million authentications per
hour.
(iii) Fifty Third Report of the Standing Committee on Finance on
the ‘Demands for Grants (2012-13)’ of the Ministry of Planning
D was presented to the Lok Sabha and Rajya Sabha on April 24,
2012. This Report summarises the objectives and financial
implications of the UID scheme being implemented under the aegis
of the Planning Commission.
(iv) Iris Authentication Accuracy Report was submitted to UIDAI
E on September 12, 2012. This Report based on an empirical study
of 5833 residents demonstrated iris authentication to be viable in
Indian context. With current level of device readiness for iris
capture, it is capable of providing coverage for 99.67% of population
with authentication accuracy of above 99.5%. Suggestions made
in this document for the vendors, once implemented, will improve
F the rates further. The overall systems – network and software –
have shown to meet desired requirements in real life condition.
Finally, six different devices with variety of form and function are
available to provide competitive vendor eco-system.
(v) Background Note on Introduction to Cash Transfers was
G prepared by the National Committee on Direct Cash Transfers in
its first meeting on November 26, 2012. This Report outlines the
advantages of cash transfers in the Indian context stating that a
unique ID for all is a prerequisite for this purpose.
17. At this juncture, Writ Petition (Civil) No. 494 of 2012 was
H filed in which show-cause notice dated November 30, 2012 was issued
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 141
[A. K. SIKRI, J.]

by this Court. As pointed out above, this writ petition assailed Aadhaar A
scheme primarily on the ground that it violates right to privacy which is
a facet of fundamental rights enshrined in Article 21 of the Constitution.

18. Counter affidavit thereto was filed by the Union of India as

well as UIDAI. The stand taken by the respondents, inter alia, was B
that right to privacy is not a fundamental right, which was so held by the
eight Judge Bench judgment in M.P. Sharma and 4 Others v. Satish
Chandra Distt. Magistrate, Delhi and 4 Others 1 . This is
notwithstanding the fact that thereafter in many judgments rendered by
this Court, right to privacy was accepted as a facet of Article 21. C
Contention of the respondents, however, was that those judgments were
contrary to the dicta laid down in M.P. Sharma and were, therefore,
per in curium. The matter on this aspect was heard by a three Judge
Bench and after hearing the parties, the Bench deemed it appropriate to
make the reference to the Constitution Bench. A five Judge Bench
was constituted, which after considering the matter, referred the same D
to a nine Judge Bench to resolve the controversy in an authoritative
manner. The nine Judge Bench judgment has given an unanimous answer
to the Reference with conclusive, unambiguous and emphatic
determination that right to privacy is a part of fundamental rights which
can be traced to Articles 14, 19 and 21 of the Constitution of India. E
19. We may also record at this stage that in this petition certain
interim orders were passed from time to time. We may give the gist of
some of the relevant orders:
(a) Order dated September 23, 2013 (two Judge Bench)
F
“All the matters require to be heard finally. List all matters for
final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting the
Aadhaar card in spite of the fact that some authority had issued
a circular making it mandatory and when any person applies to
G
get the Aadhaar card voluntarily, it may be checked whether
that person is entitled for it under the law and it should not be
given to any illegal immigrant.”

1
1954 SCR 1077 H
142 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (b) Order dated November 26, 2013 (two Judge Bench)

“After hearing the matter at length, we are of the view that all
the States and Union Territories have to be impleaded as
respondents to give effective directions. In view thereof, notice
be issued to all the States and Union Territories through standing
B counsel.
xx xx xx
Interim order to continue, in the meantime.”
(c) Order dated March 16, 2015 (three Judge Bench)
“In the meanwhile, it is brought to our notice that in certain
C quarters, Aadhaar identification is being insisted upon by the
various authorities, we do not propose to go into the specific
instances.
Since Union of India is represented by learned Solicitor General
and all the States are represented through their respective
D counsel, we expect that both the Union of India and States and
all their functionaries should adhere to the order passed by this
Court on 23rd September, 2013.”
(d) Order dated August 11, 2015 (three Judge Bench)
“Having considered the matter, we are of the view that the
E balance of interest would be best served, till the matter is finally
decided by a larger Bench, if the Union of India or the UIDAI
proceed in the following manner:
1. The Union of India shall give wide publicity in the electronic
and print media including radio and television networks that it is
not mandatory for a citizen to obtain an Aadhaar card.
F
2. The production of an Aadhaar card will not be condition for
obtaining any benefits otherwise due to a citizen.
3. The Unique Identification Number or the Aadhaar card will
not be used by the respondents for any purpose other than the
PDS Scheme and in particular for the purpose of distribution of
G food grains, etc. and cooking fuel, such as kerosene. The
Aadhaar card may also be used for the purpose of LPG
Distribution Scheme.
4. The information about an individual obtained by the Unique
Identification Authority of India while issuing an Aadhaar card
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 143
[A. K. SIKRI, J.]

shall not be used for any other purpose, save as above, except A
as may be directed by a Court for the purpose of criminal
investigation.”
(d) Order dated October 15, 2015 (Constitution Bench)
“3. After hearing the learned Attorney General for India and
other learned senior counsels, we are of the view that in B
paragraph 3 of the order dated 11.08.2015, if we add, apart
from the other two Schemes, namely, P.D.S. Scheme and L.P.G.
Distribution Scheme, the Schemes like The Mahatma Gandhi
National Social Assistance Programme (Old Age Pensions,
Widow Pensions, Disability Pensions), Prime Minister’s Jan C
Dhan Yojana (PMJDY) and Employees’ Provident Fund
Organisation (EPFO) for the present, it would not dilute earlier
order passed by this Court. Therefore, we now include the
aforesaid Schemes apart from the other two Schemes that this
Court has permitted in its earlier order dated 11.08.2015.
D
4. We impress upon the Union of India that it shall strictly
follow all the earlier orders passed by this Court commencing
from 23.09.2013.
5. We will also make it clear that the Aadhaar card scheme is
purely voluntary and it cannot be made mandatory till the matter E
is finally decided by this Court one way or the other.”
(e) Order dated September 14, 2016 in WP (C) No. 686/2016
“Having regard to the facts and circumstances of the case, the
material evidence available on record and the submissions made
by learned senior counsel, we stay the operation and F
implementation of letters dated 14.07.2006 (i.e. Annexure P-5,
P-6, P-7) for Pre-Matric Scholarship Scheme, Post-Matric
Scholarship Scheme and Merit-cum-Means Scholarship Scheme
to the extent they have made submission of Aadhaar mandatory
and direct the Ministry of Electronics and Information
G
Technology, Government of India, i.e. respondent No.2, to
remove Aadhaar number as a mandatory condition for student
registration form at the National Scholarship Portal of Ministry
of Electronics and Information Technology, Government of India
at the website...”
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144 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 20. It is also relevant to point out that against an order passed by

the High Court of Bombay at Panaji, in some criminal proceedings,
wherein the Authority was directed to pass on biometric information on
a person, UIDAI had filed Special Leave Petition (Criminal) No. 2524
of 2014 challenging the said order with the submission that such a direction
for giving biometric information was contrary to the provisions of the
B
Aadhaar Act and the Authority was not supposed to give such an
information, which was confidential. In the said special leave petition,
order dated March 24, 2014 was passed staying the operation of the
orders of the Bombay High Court. This order reads as under:
“Issue notice.
C
In addition to normal mode of service, dasti service, is permitted.
Operation of the impugned order shall remain stayed.
In the meanwhile, the present petitioner is restrained from
transferring any biometric information of any person who has been
D allotted the Aadhaar number to any other agency without his
consent in writing.
More so, no person shall be deprived of any service for want of
Aadhaar number in case he/she is otherwise eligible/entitled. All
the authorities are directed to modify their forms/circulars/likes
E so as to not compulsorily require the Aadhaar number in order to
meet the requirement of the interim order passed by this Court
forthwith.
Tag and list the matter with main matter i.e. WP (C) No. 494 of
2012.”
F
21. Likewise, in Writ Petition (Civil) No. 1002 of 2017 titled Dr.
Kalyan Menon Sen v. Union of India and Others, where constitutional
validity of linking bank accounts and mobile phones with Aadhaar linkage
was challenged, interim order was passed on November 03, 2017
extending the last date of linking to December 31, 2017 and February
G 06, 2018 respectively. This order was extended thereafter and continues
to operate.
22. We would also like to refer to the order dated September 14,
2011 passed in People’s Union for Civil Liberties (PDS Matter) v.
Union of India & Ors.2, wherein various directions were given to ensure
H 2
(2011) 14 SCC 331
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 145
[A. K. SIKRI, J.]

effective implementation of the PDS Scheme and in the process to also A

undertake the exercise of eliminating the task and ghost ration cards. In
the same manner, vide order dated March 16, 2012 it was noted that the
Government had set up a task force under the Chairmanship of Mr.
Nandan Nilekani to recommend, amongst others, an IT strategy for the
PDS. Mr. Nilekani was requested to suggest ways and means by which
B
computerization process of the PDS can be expedited. Computerisation
of PDS system was directed to be prepared and in this hue the process
of computerisation with Aadhaar registration was also suggested.
In the same very case above, which also pertained to providing
night shelters to homeless destitute persons, some orders were passed
on February 10, 20103 as well as on September 14, 20114. C

23. Again, in the case of State of Kerala & Ors. v. President,

Parent Teachers Association SNVUP School and Ors.5, where the
Court was concerned with the problem of fake or bogus admissions, it
was felt that instead of involving the Police in schools to prevent fake
admissions, more appropriate method of verification would be Unique D
Identification (UID) card as means of verification.
Architecture of the Aadhaar Project and the Aadhaar Act:
24. Before adverting to the discussion on various issues that have
been raised in these petitions, it would be apposite to first understand the E
structure of the Aadhaar Act and how it operates, having regard to various
provisions contained therein. UIDAI was established in the year 2009
by an administrative order i.e. by resolution of the Govt. of India, Planning
Commission, vide notification dated January 28, 2009. The object of the
establishment of the said Authority was primarily to lay down policies to
implement the Unique Identification Scheme (for short the ‘UIS’) of the F
Government, by which residents of India were to be provided unique
identity number. The aim was to serve this as proof of identity, which is
unique in nature, as each individual will have only one identity with no
chance of duplication. Another objective was that this number could be
used for identification of beneficiaries for transfer of benefits, subsidies, G
services and other purposes. This was the primary reason, viz. to ensure
correct identification of targeted beneficiaries for delivery of various
subsidies, benefits, services, grants, wages and other social benefits
3
(2010) 5 SC 318
4
(2010) 13 SCC 45
5
(2013) 2 SCC 705 H
146 SUPREME COURT REPORTS [2018] 8 S.C.R.

A schemes which are funded from the Consolidated Fund of India. It was
felt that the identification of real and genuine beneficiaries had become
a challenge for the Government. In the absence of a credible system to
authenticate identity of beneficiaries, it was becoming difficult to ensure
that the subsidies, benefits and services reach to intended beneficiaries.
As per the Government, failure to establish identity was proving to be
B
major hindrance for the successful implementation of the welfare
programmes and it was hitting hard the marginalised section of the society
and, in particular, women, children, senior citizens, persons with disabilities,
migrant unskilled and organised workers, and nomadic tribes. After the
establishment of the Authority, vide the aforesaid notification, it started
C enrolling the residents of this country under the UIS. These residents
also started using Aadhaar number allotted to them. It was found that
over a period of time, the use of Aadhaar number had increased manifold.
This necessitated ensuring security of the information contained in
Aadhaar number as well as the information that generated as a result of
the use of Aadhaar numbers. It was, thus, felt desirable to back the
D
system with a Parliamentary enactment.
25. With this intention, the Aadhaar Bill was introduced with the
following Introduction:
“The Unique Identification Authority of India was established by
E a resolution of the Government of India in 2009. It was meant
primarily to lay down policies and to implement the Unique
Identification Scheme, by which residents of India were to be
provided unique identity number. This number wold serve as proof
of identity and could be used for identification of beneficiaries for
transfer of benefits, subsidies, services and other purposes.
F
Later on, it was felt that the process of enrollment, authentication,
security, confidentiality and use of Aadhaar related information
be made statutory so as to facilitate the use of Aadhaar number
for delivery of various benefits, subsidies and services, the
expenditures of which were incurred from or receipts therefrom
G formed part of the Consolidated Fund of India.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Bill, 2016 inter alia, provides for
establishment of Unique Identification Authority of India, issuance
of Aadhaar number to individuals, maintenance and updating of
H information in the Central Identities Data Repository, issues
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 147
[A. K. SIKRI, J.]

pertaining to security, privacy and confidentiality of information A

as well as offences and penalties for contravention of relevant
statutory provisions.”
26. After mentioning the reasons recorded above, Statement of
Objects and Reasons for introducing the Bill also highlight the salient
features thereof in the following manner: B
“5. The Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Bill, 2016, inter alia, seeks to
provide for—
(a) issue of Aadhaar numbers to individuals on providing his
demographic and biometric information to the Unique Identification C
Authority of India;
(b) requiring Aadhaar numbers for identifying an individual for
delivery of benefits, subsidies, and services the expenditure is
incurred from or the receipt therefrom forms part of the
Consolidated Fund of India; D
(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
consisting of a Chairperson, two Members and a Member-
E
Secretary 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
(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.” G
27. The Bill having been passed by the Legislature, received the
assent of the President on March 25, 2016 and, thus, became Act (18 of
2016). Preamble to this Act again emphasises the aim and objective
which this Act seeks to achieve. It reads:
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148 SUPREME COURT REPORTS [2018] 8 S.C.R.

A “An Act to provide for, as a good governance, efficient, transparent,

and targeted delivery of subsidies, benefits and services, the
expenditure for which is incurred from the Consolidated Fund of
India, to individuals residing in India through assigning of unique
identity numbers to such individuals and for matters connected
therewith or incidental thereto”
B
28. Section 2 of the Act provides certain definitions. Some of the
definitions can be noted at this stage itself, while other relevant definitions
would be mentioned at the appropriate stage.
“(a) “Aadhaar number” means an identification number issued to
C an individual under sub-section (3) of Section 3;
(b) “Aadhaar number holder” means an individual who has been
issued an Aadhaar number under this Act;
(c) “authentication” means the process by which the Aadhaar
number along with demographic information or biometric
D information of an individual is submitted to the Central Identities
Data Repository for its verification and such Repository verifies
the correctness, or the lack thereof, on the basis of information
available with it;
(d) “authentication record” means the record of the time of
E authentication and identity of the requesting entity and the response
provided by the Authority thereto;
xx xx xx
(f) “benefit” means any advantage, gift, reward, relief, or payment,
in cash or kind, provided to an individual or a group of individuals
F
and includes such other benefits as may be notified by the Central
Government;
(g) “biometric information” means photograph, finger print, Iris
scan, or such other biological attributes of an individual as may be
specified by regulations;
G
(h) “Central Identities Data Repository” means a centralised
database in one or more locations containing all Aadhaar numbers
issued to Aadhaar number holders along with the corresponding
demographic information and biometric information of such
individuals and other information related thereto;
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 149
[A. K. SIKRI, J.]

xx xx xx A
(j) “core biometric information” means finger print, Iris scan, or
such other biological attribute of an individual as may be specified
by regulations;
(k) “demographic information” includes information relating to
the name, date of birth, address and other relevant information of B
an individual, as may be specified by regulations for the purpose
of issuing an Aadhaar number, but shall not include race, religion,
caste, tribe, ethnicity, language, records of entitlement, income or
medical history;
(l) “enrolling agency” means an agency appointed by the Authority C
or a Registrar, as the case may be, for collecting demographic
and biometric information of individuals under this Act;
(m) “enrollment” means the process, as may be specified by
regulations, to collect demographic and biometric information from
individuals by the enrolling agencies for the purpose of issuing D
Aadhaar numbers to such individuals under this Act;
(n) “identity information” in respect of an individual, includes his
Aadhaar number, his biometric information and his demographic
information;
E
xx xx xx
(r) “records of entitlement” means records of benefits, subsidies
or services provided to, or availed by, any individual under any
programme;
xx xx xx F
(u) “requesting entity” means an agency or person that submits
the Aadhaar number, and demographic information or biometric
information, of an individual to the Central Identities Data
Repository for authentication;
(v) “resident” means an individual who has resided in India for a G
period or periods amounting in all to one hundred and eighty-two
days or more in the twelve months immediately preceding the
date of application for enrolment;
(w) “service” means any provision, facility, utility or any other
assistance provided in any form to an individual or a group of H
150 SUPREME COURT REPORTS [2018] 8 S.C.R.

A individuals and includes such other services as may be notified by

the Central Government;
(x) “subsidy” means any form of aid, support, grant, subvention,
or appropriation, in cash or kind, to an individual or a group of
individuals and includes such other subsidies as may be notified
B by the Central Government.”
29. Chapter II of the Act deals with enrolment. Section 3 in this
Chapter entitles every resident to obtain the Aadhaar number by
submitting his demographic information and biometric information. As
noted above, demographic information includes information relating to
C the name, date of birth, address and ‘other relevant information of an
individual, as may be specified by regulations for the purpose of issuing
an Aadhaar number’. Photograph, fingerprint, iris scan, ‘or such other
biological attribute of an individual as may be specified by regulations’
are treated as biometric information. Sub-section (2) of Section 3
stipulates that the enrolling agency shall, at the time of enrolment, inform
D the individual undergoing enrolment of the following details in such manner
as may be specified by regulations, namely:
(a) the manner in which the information shall be used;
(b) the nature of recipients with whom the information is intended
E to be shared during authentication; and
(c) the existence of a right to access information, the procedure
for making requestes for such access, and details of the person or
department in-charge to whom such requests can be made.
30. Section 4, inter alia, provides that Aadhaar number issued to
F an individual shall not be reassigned to any individual. In this sense, it
makes an Aadhaar number given to a particular individual ‘unique’.
Section 5 delineates special measures for issuance of Aadhaar number
to certain categories of persons and reads as under:
“5. Special measures for issuance of Aadhaar number to
G certain category of persons.— The Authority shall take special
measures to issue Aadhaar number to women, children, senior
citizens, persons with disability, unskilled and unorganised workers,
nomadic tribes or to such other persons who do not have any
permanent dwelling house and such other categories of individuals
as may be specified by regulations.”
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 151
[A. K. SIKRI, J.]

32. Chapter III deals with ‘authentication’, which has generated A

the maximum debate in these proceedings. Section 7 falling under this
Chapter mandates that proof of Aadhaar number would be necessary
for receipt of certain subsidies, benefits and services etc. meaning thereby
for availing such subsidies, benefits and services, it would be necessary
for the intended beneficiary to possess Aadhaar number. In case of an
B
individual to whom no Aadhaar number has been assigned, he/she would
be required to show that application for enrolment has been given. Where
the Aadhaar number is not assigned, proviso to Section 7 lays down that
the individual shall be offered alternate and viable means of identification
for delivery of subsidy, benefit or service. Section 8 deals with
authentication of Aadhaar number and provides that on submission of C
request by any requesting entity, the Authority shall perform authentication
of Aadhaar number. This authentication is in relation to biometric
information or demographic information of an Aadhaar number holder.
Before collecting identity information for the purpose of authentication,
the requesting entity is to obtain consent of an individual and also to
D
ensure that the identity information of that individual is only used for
submission to the Central Identities Data Repository (CIDR) for
authentication. Sections 7 and 8 read as under:

“7. Proof of Aadhaar number necessary for receipt of certain E

subsidies, benefits and services, etc.— The Central
Government or, as the case may be, the State Government may,
for the purpose of establishing identity of an individual as a condition
for receipt of a subsidy, benefit or service for which the expenditure
is incurred from, or the receipt therefrom forms part of, the
Consolidated Fund of India, require that such individual undergo F
authentication, or furnish proof of possession of Aadhaar number
or in the case of an individual to whom no Aadhaar number has
been assigned, such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an
individual, the individual shall be offered alternate and viable means G
of identification for delivery of the subsidy, benefit or service.
8. Authentication of Aadhaar number.— (1) The Authority
shall perform authentication of the Aadhaar number of an Aadhaar

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152 SUPREME COURT REPORTS [2018] 8 S.C.R.

A number holder submitted by any requesting entity, in relation to

his biometric information or demographic information, subject to
such conditions and on payment of such fees and in such manner
as may be specified by regulations.
(2) A requesting entity shall—
B (a) unless otherwise provided in this Act, obtain the consent of an
individual before collecting his identity information for the purposes
of authentication in such manner as may be specified by
regulations; and
(b) ensure that the identity information of an individual is only
C used for submission to the Central Identities Data Repository for
authentication.
(3) A requesting entity shall inform, in such manner as may be
specified by regulations, the individual submitting his identity
information for authentication, the following details with respect
D to authentication, namely—
(a) the nature of information that may be shared upon
authentication;
(b) the uses to which the information received during authentication
may be put by the requesting entity; and
E
(c) alternatives to submission of identity information to the
requesting entity.
(4) The Authority shall respond to an authentication query with a
positive, negative or any other appropriate response sharing such
F identity information excluding any core biometric information.”
33. Under Section 10, the Authority is given power to engage one
or more entities to establish and maintain the CIDR and to perform any
other functions as may be specified by regulations.
34. Chapter IV deals with the Establishment of the Authority. As
G per Section 11, the Central Government, by notification, shall establish
an Authority to be known as the Unique Identification Authority of India.
Notification dated July 12, 2016 was issued by the Central Government
establishing the Authority. Other provisions in this Chapter deal with the
composition of the Authority, qualifications for appointment of the
H Chairperson and Members of Authority; term of their office and their
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 153
[A. K. SIKRI, J.]

removal; and restrictions on their employment after cessation of office. A

It also provides for the functions of Chairperson as well as office of the
Chief Executive Officer (CEO) and his functions and the meetings of
the Authority etc. Powers and functions of the Authority are stipulated
in Section 23.
35. Chapter V talks of grants to the Authority by the Central B
Government as well as accounts and audit and annual report of the
Authority.
36. Chapter VI deals with the important aspects pertaining to
‘protection of information’. Section 28 of the Aadhaar Act puts an
obligation on the Authority to ensure the security of identity information C
and authentication records of individuals. Likewise, Section 29 imposes
certain restrictions on sharing information i.e. core biometric information
collected or created under the Act or the identity information. The
biometric information collected and stored in electronic form, in
accordance with this Act and regulations made thereunder, is treated as
‘electronic record’ and ‘sensitive personal data or information’ by virtue D
of Section 30 of the Act. As these are very material and significant
provisions of the Act, the same are reproduced verbatim in their entirety:
“28. Security and confidentiality of information.— (1) The
Authority shall ensure the security of identity information and
authentication records of individuals. E

(2) Subject to the provisions of this Act, the Authority shall ensure
confidentiality of identity information and authentication records
of individuals.
(3) The Authority shall take all necessary measures to ensure F
that the information in the possession or control of the Authority,
including information stored in the Central Identities Data
Repository, is secured and protected against access, use or
disclosure not permitted under this Act or regulations made
thereunder, and against accidental or intentional destruction, loss
or damage. G
(4) Without prejudice to sub-sections (1) and (2), the Authority
shall—
(a) adopt and implement appropriate technical and organisational
security measures;
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154 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (b) ensure that the agencies, consultants, advisors or other persons

appointed or engaged for performing any function of the Authority
under this Act, have in place appropriate technical and
organisational security measures for the information; and
(c) ensure that the agreements or arrangements entered into
B with such agencies, consultants, advisors or other persons, impose
obligations equivalent to those imposed on the Authority under
this Act, and require such agencies, consultants, advisors and other
persons to act only on instructions from the Authority.
29. Restriction on sharing information.— (1) No core
C biometric information, collected or created under this Act, shall
be—
(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar
numbers and authentication under this Act.
D
(2) The identity information, other than core biometric information,
collected or created under this Act may be shared only in
accordance with the provisions of this Act and in such manner as
may be specified by regulations.
(3) No identity information available with a requesting entity shall
E
be—
(a) used for any purpose, other than that specified to the individual
at the time of submitting any identity information for authentication;
or
F (b) disclosed further, except with the prior consent of the individual
to whom such information relates.
(4) No Aadhaar number or core biometric information collected
or created under this Act in respect of an Aadhaar number holder
shall be published, displayed or posted publicly, except for the
G purposes as may be specified by regulations.
30. Biometric information deemed to be sensitive personal
information.— The biometric information collected and stored
in electronic form, in accordance with this Act and regulations
made thereunder, shall be deemed to be “electronic record” and
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 155
[A. K. SIKRI, J.]

“sensitive personal data or information”, and the provisions A

contained in the Information Technology Act, 2000 (21 of 2000)
and the rules made thereunder shall apply to such information, in
addition to, and to the extent not in derogation of the provisions of
this Act.
Explanation.—For the purposes of this section, the expressions— B
(a) “electronic form” shall have the same meaning as assigned to
it in clause (r) of sub-section (1) of Section 2 of the Information
Technology Act, 2000 (21 of 2000);
(b) “electronic record” shall have the same meaning as assigned
to it in clause (t) of sub-section (1) of Section 2 of the Information C
Technology Act, 2000 (21 of 2000);
(c) “sensitive personal data or information” shall have the same
meaning as assigned to it in clause (iii) of the Explanation to Section
43-A of the Information Technology Act, 2000 (21 of 2000).”
D
37. Section 32 provides that the Authority shall maintain
authentication records in such manner and for such period as may be
specified by regulations and enables every Aadhaar number holder to
obtain his authentication record in such manner as may be specified by
regulations. This provision also puts an embargo upon the Authority to
collect, keep or maintain any information about ‘purpose of E
authentication’. Section 33, however, creates an exception to the
provisions of Section 28(ii) and (v) as well as Section 29(ii) by stipulating
that the information can be disclosed pursuant to an order of a court not
inferior to that of a District Judge. It also carves out another exception
in those cases where it becomes necessary to disclose the information F
in the interest of national security in pursuance of a direction of an officer
not below the rank of Joint Secretary to the Government of India specially
authorised in this behalf by an order of the Central Government.
38. Sections 34 to 47 in Chapter VII of the Act enumerate various
kinds of offences and provide penalties for such offences. For our
G
purposes, relevant Section is Section 37 which makes act of disclosing
identity information as offence which is punishable with imprisonment
for a term which may extend to three years or with a fine which may
extend to ten thousand rupees. In the case of a company, this fine can
extend to one lakh rupees. Likewise, Section 38 provides for penalty for
unauthorised access to the CIDR. Penalties for tampering with data in H
156 SUPREME COURT REPORTS [2018] 8 S.C.R.

A CIDR (Section 39) and unauthorised use by requesting entity (Section

40) are also stipulated.
Cognizance of offences under this Chapter can be taken by a
court only on a complaint made by the Authority or any officer or person
authorised by it.
B 39. Section 50 of the Act empowers the Central Government to
issue directions to the Authority in writing from time to time and the
Authority shall be bound to carry out such directions on questions of
policy. Section 53 empowers the Central Government to make rules to
carry out the provisions of the Act generally as well as the specific
C matters enumerated in sub-section (2) thereof. Section 54 empowers
the Authority to make regulations consistent with the Act and Rules
made thereunder, for carrying out the provisions of the Act and, in
particular, the matters mentioned in sub-section (2). Such Rules and
Regulations are to be laid before the Parliament, as provided in Section 55.
D 40. Section 57 provides that the Aadhaar Act would not prevent
the use of Aadhaar number for establishing the identity of an individual
for any purpose and reads as under:
“57. Act not to prevent use of Aadhaar number for other
purposes under law.— Nothing contained in this Act shall prevent
E the use of Aadhaar number for establishing the identity of an
individual for any purpose, whether by the State or any body
corporate or person, pursuant to any law, for the time being in
force, or any contract to this effect:
Provided that the use of Aadhaar number under this section shall
F be subject to the procedure and obligations under Section 8 and
Chapter VI.”
41. If any difficulty arises in giving effect to the provisions of the
Act, the Central Government is empowered to make provisions to remove
those difficulties, provided that such provisions are not inconsistent with
the provisions of the Act. Section 59, which is the last provision in the
G
Act, is an attempt to save all the acts and actions of the Central
Government under Notification dated January 28, 2009 vide which the
Authority was established or the Department of Electronics and
Information Technology under the Cabinet Secretariat Notification dated
September 12, 2015. This provision is couched in the following language:
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 157
[A. K. SIKRI, J.]

“59. Savings.— Anything done or any action taken by the Central A

Government under the Resolution of the Government of India,
Planning Commission bearing Notification Number A-43011/02/
2009-Admin. I, dated the 28th January, 2009, or by the Department
of Electronics and Information Technology under the Cabinet
Secretariat Notification bearing Notification Number S.O.
B
2492(E), dated the 12th September, 2015, as the case may be,
shall be deemed to have been validly done or taken under this
Act.”
42. Regulations have been framed under the Act, namely, (1) The
Aadhaar (Enrolment and Update) Regulations, 2016; (2) The Aadhaar
(Authentication) Regulations, 2016; (3) The Aadhaar (Data Security) C
Regulations, 2016; and (4) The Aadhaar (Sharing of Information)
Regulations, 2016. The relevant provisions in these Regulations are
reproduced below:
“The Aadhaar (Enrolment and Update) Regulations, 2016
D
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;
E
(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 F
undergoing enrolment:
(i) Mobile number
(ii) Email address

(3) In case of Introducer-based enrolment, the following additional G

information shall be collected:
(i) Introducer name;
(ii)Introducer’s Aadhaar number.

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158 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (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;
B (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.
(6) The demographic information shall not include race, religion,
caste, tribe, ethnicity, language, record of entitlement, income or
C medical history of the resident.
The Aadhaar (Authentication) Regulations, 2016
3. Types of Authentication.— There shall be two types of
authentication facilities provided by the Authority, namely—

D (i) Yes/No authentication facility, which may be carried out using

any of the modes specified in regulation 4(2); and
(ii) e-KYC authentication facility, which may be carried out only
using OTP and/ or biometric authentication modes as specified in
regulation 4(2).
E 4. Modes of Authentication. — (1) An authentication request
shall be entertained by the Authority only upon a request sent by
a requesting entity electronically in accordance with these
regulations and conforming to the specifications laid down by the
Authority.
F (2) Authentication may be carried out through the following modes:
(a) Demographic authentication: The Aadhaar number and
demographic information of the Aadhaar number holder obtained
from the Aadhaar number holder is matched with the demographic
information of the Aadhaar number holder in the CIDR.
G (b) One-time pin based authentication: A One Time Pin (OTP),
with limited time validity, is sent to the mobile number and/ or e-
mail address of the Aadhaar number holder registered with the
Authority, or generated by other appropriate means. The Aadhaar
number holder shall provide this OTP along with his Aadhaar
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 159
[A. K. SIKRI, J.]

number during authentication and the same shall be matched with A

the OTP generated by the Authority.
(c) Biometric-based authentication: The Aadhaar number and
biometric information submitted by an Aadhaar number holder
are matched with the biometric information of the said Aadhaar
number holder stored in the CIDR. This may be fingerprints-based B
or iris-based authentication or other biometric modalities based
on biometric information stored in the CIDR.
(d) Multi-factor authentication: A combination of two or more of
the above modes may be used for authentication.
(3) A requesting entity may choose suitable mode(s) of C
authentication from the modes specified in sub-regulation (2) for
a particular service or business function as per its requirement,
including multiple factor authentication for enhancing security. For
the avoidance of doubt, it is clarified that e-KYC authentication
shall only be carried out using OTP and/ or biometric authentication. D
xx xx xx
7. Capturing of biometric information by requesting
entity.— (1) A requesting entity shall capture the biometric
information of the Aadhaar number holder using certified biometric
devices as per the processes and specifications laid down by the E
Authority.
(2) A requesting entity shall necessarily encrypt and secure the
biometric data at the time of capture as per the specifications laid
down by the Authority.
F
(3) For optimum results in capturing of biometric information, a
requesting entity shall adopt the processes as may be specified by
the Authority from time to time for this purpose.
xx xx xx
9. Process of sending authentication requests.— (1) After G
collecting the Aadhaar number or any other identifier provided by
the requesting entity which is mapped to Aadhaar number and
necessary demographic and / or biometric information and/ or
OTP from the Aadhaar number holder, the client application shall
immediately package and encrypt these input parameters into PID
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160 SUPREME COURT REPORTS [2018] 8 S.C.R.

A block before any transmission, as per the specifications laid down

by the Authority, and shall send it to server of the requesting entity
using secure protocols as may be laid down by the Authority for
this purpose.
(2) After validation, the server of a requesting entity shall pass
B the authentication request to the CIDR, through the server of the
Authentication Service Agency as per the specifications laid down
by the Authority. The authentication request shall be digitally signed
by the requesting entity and/or by the Authentication Service
Agency, as per the mutual agreement between them.
C (3) Based on the mode of authentication request, the CIDR shall
validate the input parameters against the data stored therein and
return a digitally signed Yes or No authentication response, or a
digitally signed e-KYC authentication response with encrypted e-
KYC data, as the case may be, along with other technical details
related to the authentication transaction.
D
(4) In all modes of authentication, the Aadhaar number is
mandatory and is submitted along with the input parameters
specified in sub-regulation (1) above such that authentication is
always reduced to a 1:1 match.

E (5) A requesting entity shall ensure that encryption of PID Block

takes place at the time of capture on the authentication device as
per the processes and specifications laid down by the Authority.
xx xx xx
18. Maintenance of logs by requesting entity. — (1) A
F requesting entity shall maintain logs of the authentication
transactions processed by it, containing the following transaction
details, namely:—
(a) the Aadhaar number against which authentication is sought;
(b) specified parameters of authentication request submitted;
G
(c) specified parameters received as authentication response;
(d) the record of disclosure of information to the Aadhaar number
holder at the time of authentication; and
(e) record of consent of the Aadhaar number holder for
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 161
[A. K. SIKRI, J.]

authentication, but shall not, in any event, retain the PID A

information.
(2) The logs of authentication transactions shall be maintained by
the requesting entity for a period of 2 (two) years, during which
period an Aadhaar number holder shall have the right to access
such logs, in accordance with the procedure as may be specified. B
(3) Upon expiry of the period specified in sub-regulation (2), the
logs shall be archived for a period of five years or the number of
years as required by the laws or regulations governing the entity,
whichever is later, and upon expiry of the said period, the logs
shall be deleted except those records required to be retained by a C
court or required to be retained for any pending disputes.
(4) The requesting entity shall not share the authentication logs
with any person other than the concerned Aadhaar number holder
upon his request or for grievance redressal and resolution of disputes
or with the Authority for audit purposes. The authentication logs D
shall not be used for any purpose other than stated in this sub-
regulation.
(5) The requesting entity shall comply with all relevant laws, rules
and regulations, including, but not limited to, the Information
Technology Act, 2000 and the Evidence Act, 1872, for the storage E
of logs.
(6) The obligations relating to authentication logs as specified in
this regulation shall continue to remain in force despite termination
of appointment in accordance with these regulations.
xx xx xx F
26. Storage and Maintenance of Authentication Transaction
Data. — (1) The Authority shall store and maintain authentication
transaction data, which shall contain the following information:—
(a) authentication request data received including PID block;
G
(b) authentication response data sent;
(c) meta data related to the transaction;
(d) any authentication server side configurations as necessary
Provided that the Authority shall not, in any case, store the purpose
of authentication. H
162 SUPREME COURT REPORTS [2018] 8 S.C.R.

A The Aadhaar (Data Security) Regulations, 2016

3. Measures for ensuring information security. — (1) The
Authority may specify an information security policy setting out
inter alia the technical and organisational measures to be adopted
by the Authority and its personnel, and also security measures to
B be adopted by agencies, advisors, consultants and other service
providers engaged by the Authority, registrar, enrolling agency,
requesting entities, and Authentication Service Agencies.
(2) Such information security policy may provide for:—
(a) identifying and maintaining an inventory of assets associated
C with the information and information processing facilities;
(b) implementing controls to prevent and detect any loss, damage,
theft or compromise of the assets;
(c) allowing only controlled access to confidential information;
D (d) implementing controls to detect and protect against virus/
malwares;
(e) a change management process to ensure information security
is maintained during changes;
(f) a patch management process to protect information systems
E
from vulnerabilities and security risks;
(g) a robust monitoring process to identify unusual events and
patterns that could impact security and performance of information
systems and a proper reporting and mitigation process;
F (h) encryption of data packets containing biometrics, and enabling
decryption only in secured locations;
(i) partitioning of CIDR network into zones based on risk and
trust;
(j) deploying necessary technical controls for protecting CIDR
G network;
(k) service continuity in case of a disaster;
(l) monitoring of equipment, systems and networks;
(m) measures for fraud prevention and effective remedies in case
H of fraud;
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 163
[A. K. SIKRI, J.]

(n) requirement of entering into non-disclosure agreements with A

the personnel;
(o) provisions for audit of internal systems and networks; (p)
restrictions on personnel relating to processes, systems and
networks.
(q) inclusion of security and confidentiality obligations in the B
agreements or arrangements with the agencies, consultants,
advisors or other persons engaged by the Authority.
(3) The Authority shall monitor compliance with the information
security policy and other security requirements through internal
audits or through independent agencies. C

(4) The Authority shall designate an officer as Chief Information

Security Officer for disseminating and monitoring the information
security policy and other security-related programmes and
initiatives of the Authority.
D
xx xx xx
5. Security obligations of service providers, etc. — The
agencies, consultants, advisors and other service providers
engaged by the Authority for discharging any function relating to
its processes shall:
E
(a) ensure compliance with the information security policy specified
by the Authority;
(b) periodically report compliance with the information security
policy and contractual requirements, as required by the Authority;
(c) report promptly to the Authority any security incidents affecting F
the confidentiality, integrity and availability of information related
to the Authority’s functions;
(d) ensure that records related to the Authority shall be protected
from loss, destruction, falsification, unauthorised access and
unauthorised release; G
(e) ensure confidentiality obligations are maintained during the
term and on termination of the agreement;
(f) ensure that appropriate security and confidentiality obligations
are provided for in their agreements with their employees and
staff members;
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164 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (g) ensure that the employees having physical access to CIDR

data centers and logical access to CIDR data centers undergo
necessary background checks;
(h) define the security perimeters holding sensitive information,
and ensure only authorised individuals are allowed access to such
B areas to prevent any data leakage or misuse; and
(i) where they are involved in the handling of the biometric data,
ensure that they use only those biometric devices which are
certified by a certification body as identified by the Authority and
ensure that appropriate systems are built to ensure security of the
C biometric data.
The Aadhaar (Sharing of Information) Regulations, 2016.
3. Sharing of information by the Authority. — (1) Core
biometric information collected by the Authority under the Act
D shall not be shared with anyone for any reason whatsoever.
(2) The demographic information and photograph of an individual
collected by the Authority under the Act may be shared by the
Authority with a requesting entity in response to an authentication
request for e-KYC data pertaining to such individual, upon the
E requesting entity obtaining consent from the Aadhaar number
holder for the authentication process, in accordance with the
provisions of the Act and the Aadhaar (Authentication)
Regulations, 2016.
(3) The Authority shall share authentication records of the Aadhaar
F number holder with him in accordance with regulation 28 of the
Aadhaar (Authentication) Regulations, 2016.
(4) The Authority may share demographic information and
photograph, and the authentication records of an Aadhaar number
holder when required to do so in accordance with Section 33 of
G the Act.
xx xx xx
6. Restrictions on sharing, circulating or publishing of
Aadhaar number. — (1) The Aadhaar number of an individual
shall not be published, displayed or posted publicly by any person
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 165
[A. K. SIKRI, J.]

or entity or agency. A
(2) Any individual, entity or agency, which is in possession of
Aadhaar number(s) of Aadhaar number holders, shall ensure
security and confidentiality of the Aadhaar numbers and of any
record or database containing the Aadhaar numbers.
(3) Without prejudice to sub-regulations (1) and (2), no entity, B
including a requesting entity, which is in possession of the Aadhaar
number of an Aadhaar number holder, shall make public any
database or record containing the Aadhaar numbers of individuals,
unless the Aadhaar numbers have been redacted or blacked out
through appropriate means, both in print and electronic form. C
(4) No entity, including a requesting entity, shall require an individual
to transmit his Aadhaar number over the Internet unless such
transmission is secure and the Aadhaar number is transmitted in
encrypted form except where transmission is required for
correction of errors or redressal of grievances. D
(5) No entity, including a requesting entity, shall retain Aadhaar
numbers or any document or database containing Aadhaar
numbers for longer than is necessary for the purpose specified to
the Aadhaar number holder at the time of obtaining consent.”
43. To sum up broadly, the Authority is established under the Act E
as a statutory body which is given the task of developing the policy,
procedure and system for issuing Aadhaar numbers to individuals and
also to perform authentication thereof as per the provisions of the Act.
For the purpose of enrolment and assigning Aadhaar numbers, enrolling
agencies are recruited by the Authority. All the residents in India are F
eligible to obtain an Aadhaar number. To enable a resident to get Aadhaar
number, he is required to submit demographic as well as biometric
information i.e., apart from giving information relating to name, date of
birth and address, biometric information in the form of photograph,
fingerprint, iris scan is also to be provided. Aadhaar number given to a
particular person is treated as unique number as it cannot be reassigned G
to any other individual.
Insofar as subsidies, benefits or services to be given by the Central
Government or the State Government, as the case may be, is concerned,
these Governments can mandate that receipt of these subsidies, benefits
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166 SUPREME COURT REPORTS [2018] 8 S.C.R.

A and services would be given only on furnishing proof of possession of

Aadhaar number (or proof of making an application for enrolment, where
Aadhaar number is not assigned). An added requirement is that such
individual would undergo authentication at the time of receiving such
benefits etc. A particular institution/body from which the aforesaid subsidy,
benefit or service is to be claimed by such an individual, the intended
B
recipient would submit his Aadhaar number and is also required to give
her biometric information to that agency. On receiving this information
and for the purpose of its authentication, the said agency, known as
Requesting Entity, would send the request to the Authority which shall
perform the job of authentication of Aadhaar number. On confirming
C the identity of a person, the individual is entitled to receive subsidy, benefit
or service. Aadhaar number is permitted to be used by the holder for
other purposes as well.
44. In this whole process, any resident seeking to obtain an
Aadhaar number is, in the first instance, required to submit her
D demographic information and biometric information at the time of
enrolment. She, thus, parts with her photograph, fingerprint and iris
scan at that stage by giving the same to the enrolling agency, which may
be a private body/person. Likewise, every time when such Aadhaar
holder intends to receive a subsidy, benefit or service and goes to
E specified/designated agency or person for that purpose, she would be
giving her biometric information to that requesting entity, which, in turn,
shall get the same authenticated from the Authority before providing a
subsidy, benefit or service. Whenever request is received for
authentication by the Authority, record of such a request is kept and
stored in the CIDR. At the same time, provisions for protection of such
F information/data have been made, as indicated above. Aadhaar number
can also be used for purposes other than stated in the Act i.e. purposes
other than provided under Section 7 of the Act, as mentioned in Section
57 of the Act, which permit the State or any body corporate or person,
pursuant to any law, for the time being in force, or any contract to this
effect, to use the Aadhaar number for establishing the identity of an
G
individual. It can be used as a proof of identity, like other identity proofs
such as PAN card, ration card, driving licence, passport etc.
45. Piercing into the aforesaid Aadhaar programme and its
formation/structure under the Aadhaar Act, foundational arguments are
H that it is a grave risk to the rights and liberties of the citizens of this
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 167
[A. K. SIKRI, J.]

country which are secured by the Constitution of India. It militates A

against the constitutional abiding values and its foundational morality
and has the potential to enable an intrusive state to become a surveillance
state on the basis of information that is collected in respect of each
individual by creation of a joint electronic mesh. In this manner, the Act
strikes at the very privacy of each individual thereby offending the right B
to privacy which is elevated and given the status of fundamental right by
tracing it to Articles 14, 19 and 21 of the Constitution of India by a nine
Judge Bench judgment of this Court in K.S. Puttaswamy & Anr. v.
Union of India & Ors.6. Most of the counsel appearing for different
petitioners (though not all) conceded that there cannot be a serious dispute
insofar as allotment of Aadhaar number, for the purpose of unique C
identification of the residents, is concerned. However, apprehensions
have been expressed about the manner in which the Scheme has been
rolled out and implemented. The entire edifice of the aforesaid projection
is based on the premise that it forces a person, who intends to enrol for
Aadhaar, to part with his core information namely biometric information
D
in the form of fingerprints and iris scan. These are to be given to the
enrolment agency in the first instance which is a private body and, thus,
there is risk of misuse of this vital information pertaining to an individual.
Further, it is argued that the most delicate and fragile part, susceptible to
misuse, is the authentication process which is to be carried out each
time the holder of Aadhaar number wants to establish her identity. At E
that stage, not only the individual parts with the biometric information
again with the RE (which may again be a private agency as well), the
purpose for which such a person approaches the RE would also be
known i.e. the nature of transaction which is supposed to be undertaken
by the said person at that time. Such information relating to different
F
transactions of a person across the life of the citizen is connected to a
central database. This record may enable the State to profile citizens,
track their movements, assess their habits and silently influence their
behaviour. Over a period of time, the profiling would enable the State to
stifle dissent and influence political decision making. It may also enable
the State to act as a surveillant state and there is a propensity for it to G
become a totalitarian state. It is stressed that at its core, Aadhaar alters
the relationship between the citizen and the State. It diminishes the
status of the citizen. Rights freely exercised, liberties freely enjoyed,
entitlements granted by the Constitution and laws are all made conditional,
6
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168 SUPREME COURT REPORTS [2018] 8 S.C.R.

A on a compulsory barter. The barter compels the citizen to give up her

biometrics ‘voluntarily’, allow her biometrics and demographic information
to be stored by the State and private operators and then used for a
process termed ‘authentication’.
To put it in nutshell, provisions of the Aadhaar Act are perceived
B by the petitioners as giving away of vital information about the residents
to the State not only in the form of biometrics but also about the movement
as well as varied kinds of transactions which a resident would enter into
from time to time. The threat is in the form of profiling the citizens by
the State on the one hand and also misuse thereof by private agencies
C whether it is enrolling agency or requesting agency or even private bodies
mentioned in Section 57 of the Act. In essence, it is stated that not only
data of aforesaid nature is stored by the CIDR, which has the threat of
being leaked, it can also be misused by non-State actors. In other words,
it is sought to be highlighted that there is no assurance of any data
protection at any level.
D
46. The respondents, on the other hand, have attempted to shake
the very foundation of the aforesaid structure of the petitioners’ case.
They argue that in the first instance, minimal biometric information of
the applicant, who intends to have Aadhaar number, is obtained which is
also stored in CIDR for the purpose of authentication. Secondly, no
E other information is stored. It is emphasised that there is no data collection
in respect of religion, caste, tribe, language records of entitlement, income
or medical history of the applicant at the time of Aadhaar enrolment.
Thirdly, the Authority also claimed that the entire Aadhaar enrolment
eco-system is foolproof inasmuch as within few seconds of the biometrics
F having been collected by the enrolling agency, the said information gets
transmitted the Authorities/CIDR, that too in an encrypted form, and
goes out of the reach of the enrolling agency. Same is the situation at
the time of authentication as biometric information does not remain with
the requesting agency. Fourthly, while undertaking the authentication
process, the Authority simply matches the biometrics and no other
G information is received or stored in respect of purpose, location or nature
or transaction etc. Therefore, the question of profiling does not arise at
all. A powerpoint presentation was given by Dr. Ajay Bhushan Pandey,
CEO of the Authority, in the Court, while explaining various nuances of
the whole process. In this presentation, the enrolment process has been
H projected in the following manner:
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 169
[A. K. SIKRI, J.]

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170 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 47. Insofar as Aadhaar authentication service is concerned, it was

explained that the same is e-KYC wherein following process is involved:

48. It was asserted with all vehemence that while doing the
G aforesaid authentication, no other information is collected or stored by
the Authority/CIDR, specifically pointing that:
(a) The Authority does not collect purpose, location or details of
transaction. Thus, it is purpose blind.
(b) The information collected as aforesaid remains in silos.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 171
[A. K. SIKRI, J.]

(c) Merging of silos is prohibited. A

(d) The RE is provided answer only in Yes or No about the
authentication of the person concerned.
(e) The authentication process is not exposed to the internet world.
(f) Security measures as per the provisions of Section 29(3) read B
with Section 38(g) as well as Regulation 17(1)(d) of the
Authentication Regulations are strictly followed and adhere to.
The Aadhaar Authentication Security has been described in the
following manner:
C

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172 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 49. In this hue, the Authority has projected that the Aadhaar design
takes full care of privacy and security of the persons. It is sought to be
demonstrated by pointing out the following features:
(i) Privacy is ensured by the very design of Aadhaar which was
conceived by the Authority from very inception and is now even
B incarnated in the Aadhaar Act because : (a) it is backed by minimal
data, federated databases, optimal ignorance; and (b) there is no
transaction/pooling data coupled with the fact that resident
authorised access to identity data is available.
(ii) Aadhaar is designed for inclusion inasmuch as : (a) there is
C flexibility of demographic data, multi-modal biometrics, and flexible
processes; (b) DDSVP Committee by Dr. V.N. Vittal, former
CVC; and (c) Biometric design and Standards Committee by Dr.
Gairola, Former DG, NIC.
(iii) All security numbers are followed which can be seen from:
D (a) PKI-2048 encryption from the time of capture, (b) adoption
of best-in-class security standards and practices, and (c) strong
audit and traceability as well as fraud detection.
50. It was explained that the security and data privacy is ensured
in the following way:
E (i) The data sent to ABIS is completely anonymised. The ABIS
systems do not have access to resident’s demographic information
as they are only sent biometric information of a resident with a
reference number and asked to de-duplicate. The de-duplication
result with the reference number is mapped back to the correct
F enrolment number by the Authorities own enrolment server.
(ii) The ABIS providers only provide their software and services.
The data is stored in UIDAI storage and it never leaves the secure
premises.
(iii) The ABIS providers do not store the biometric images (source).
G They only store template for the purpose of de-duplication (with
reference number).
(iv) The encrypted enrolment packet sent by the enrolment client
software to the CIDR is decrypted by the enrolment server but
the decrypted packet is never stored.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 173
[A. K. SIKRI, J.]

(v) The original biometric images of fingerprints, iris and face are A
archived and stored offline. Hence, they cannot be accessed
through an online network.
(vi) The biometric system provides high accuracy of over 99.86%.
The mixed biometric have been adopted only t enhance the
accuracy and to reduce the errors which may arise on account of B
some residents either not having biometrics or not having some
particular biometric.
51. Above all, there is an oversight by Technology and Architecture
Review Board (TARB) and Security Review Committee. This Board
and Committee consists of very high profiled officers. The aforesaid C
security measures are shown by the Authority in the following manner:

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174 SUPREME COURT REPORTS [2018] 8 S.C.R.

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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 175
[A. K. SIKRI, J.]

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176 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 52. We may point out at this stage that to the powerpoint

presentation by Dr. Pandey on the aforesaid lines, certain questions were
put to him by Mr. Shyam Divan as well as Mr. Vishwanathan, senior
advocates, and the answers thereto were given by Dr. Pandey. In order
to have the complete picture, we will be well advised to reproduce these
questions and their answers as well, which are as follows:
B
53. Questions and Answers to the queries raised by the petitioners
in W.P. (C) No. 1056 of 2017 entitled ‘Nachiket Udupa & Anr. v.
Union of India
(1) What are the figures for authentication failures, both at the
C national and state level? Please provide a breakup, between fingerprints
and iris.
Ans.: UIDAI cannot provide authentication failure rates at the
state level since it does not track the location of the authentication
transactions. Authentication failure rate at national level is as below:
D
Modality Unique UID Failed Unique ID Failed Percentage
Participated
IRIS 1,08,50,391 9,27,132 8.54%
FINGER 61,63,63,346 3,69,62,619 6.00%

E It must be stated that authentication failures do not mean exclusion

or denial from subsidies, benefits or services since the requesting entities
are obliged under the law to provide for exception handling mechanisms.
(2) In case a person who is claiming a biometric exception (e.g. a
person suffering from leprosy) does not have a mobile phone number, or
F has not given it in the enrolment form, or if the phone number changes –
how will her Aadhaar enrolment and subsequent authentication occur
and under which provision of law?
Ans.: Aadhaar enrolment is done for all residents, even of residents
with leprosy. Biometric exception process is defined in the UIDAI
G resident enrolment process. In the case of a leprosy patient, who may
not be able to do fingerprint authentication, iris authentication can be
used for update (and add the mobile number). This was the reason for
multi-modal enrolment and authentication being selected for use in
Aadhaar.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 177
[A. K. SIKRI, J.]

Only in an unlikely scenario where both iris and fingerprint cannot A

be used for authentication, the mobile number is one of the methods for
authentication. In cases where authentication through mobile number is
not possible or feasible, the requesting entities have to provide their own
exception and backup mechanism to ensure services to Aadhaar holders.
As part of the exception handling mechanism, UIDAI has already
B
implemented a digitally signed QR code into e-Aadhaar which allows
agencies to verify the Aadhaar card in an off-line manner and trust the
data (based on digital signature validation) without accessing e-KYC
API service of UIDAI. This is a simple off-line mechanism to quickly
verify the legitimacy of the Aadhaar card. But, it does not ensure that
the person holding the card is the owner of that Aadhaar number. It C
needs either manual check of photo against the face of the individual
(like the way ID is verified at the entry of airports) or some form of
electronic authentication using Aadhaar authentication API or agency
specific authentication scheme. QR code based verification allows
Aadhaar number holders to use their ID on a day-to-day purpose without
D
centage using online e-KYC authentication. The verification through offline QR
code can be used for those purposes or cases where proof of presence
% or proof of ownership of card is not required.
% The Aadhaar Act and Aadhaar (Enrolment and Update)
Regulations, 2016 define special provision for enrolment of residents
with biometric exception. Further, as per Regulation 14(i) of the E
Authentication Regulations, RE shall implement exception-handling
mechanisms and backup identity authentication mechanisms to ensure
seamless provision of authentication services to Aadhaar number holders.
Accordingly, DBT Mission Cabinet Secretariat has issued a detailed
circular dated December 19, 2017 regarding exception handling during F
use of Aadhaar in the benefit schemes of the Government.
(3) Are there any surprise checks, field studies done to check the
authenticity of the exemption registers?
Ans.: As per Regulation 14(i) of the Authentication Regulations,
this exception handling mechanism is to be implemented and monitored G
by the requesting entities and in case of the Government, their respective
Ministries. Further, the DBT Mission Cabinet Secretariat had issued
Circular dated December 19, 2017 on exception handling and audit of
exceptions.
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178 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (4) Between the ages of 5-15 years, can a school, as an

‘introducer’, enrol a child without parental consent?
Ans.: School officials, if permitted to act as ‘introducer’, can enrol
only when there is a parental consent to enrol. The disclosure requirement
as per Section 3(2) of the Aadhaar Act and the Aadhaar (Enrolment and
B Update) Regulations, 2016 (Schedule-I) is implemented through the
enrolment form which is signed by the resident making it informed
disclosure. In case of children, the consent form will be signed by the
parent/guardian.
(5) Once a child attains the age of 18 years, is there any way for
C them to opt out or revoke consent?
Ans.: It is not permissible under the Aadhaar Act. However,
residents have the option of permanently locking their biometrics and
only temporarily unlock it when needed for biometric authentication as
per Regulation 11 of the Authentication Regulations.
D (6) What is the status of the enrolments done by the 49,000
blacklisted enrolment operators? Please provide the number of
enrolments done by them?
Ans.: UIDAI has a policy to enforce the process guidelines and
data quality check during the enrolment process. 100% of the enrolment
E done by operators undergoes a quality assurance check, wherein every
enrolment passes through a human eye. Any Aadhaar enrolment found
to be contrary to the UIDAI process, the enrolment itself gets rejected
and Aadhaar is not generated. The resident is advised to re-enroll. Once
an operator is blacklisted or suspended, further enrolments cannot be
F carried out by him during the time the order of blacklisting/suspension is
valid.
(7) What are the total number of biometric De-duplication
rejections that have taken place till date? In case an enrolment is rejected
either for: (a) duplicate enrolment and (b) other technical reason under
Regulation 14 of the Aadhaar Enrolment Regulations, what happens to
G
the data packet that contains the stored biometric and demographic
information?
Ans.: The total number of biometric de-duplication rejections that
have taken place are 6.91 crores as on March 21, 2018. These figures
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 179
[A. K. SIKRI, J.]

do not pertain to the number of unique individuals who have been denied A
Aadhaar enrolment resulting in no Aadhaar issued to them. This figure
merely pertains to the number of applications which have been identified
by the Aadhaar de-duplication system as having matching biometrics to
an existing Aadhaar number holder. The biometric de-duplication system
is designed to identify as duplicate those cases where any one of the
B
biometrics (ten fingers and two irises) match. However, very often it is
found that all the biometrics match. It is highly improbable for the
biometrics to match unless the same person has applied again. There
are a number of reasons why the same person might apply more than
once. For instance, many individuals innocently apply for enrolment
multiple times because of the delay in getting their Aadhaar cards due to C
postal delays, loss or destruction of their cards or confusion about how
the system works. Each time one applies for Aadhaar, the system
identifies her as a new enrolment but when it recognises that the
individual’s biometrics match with already those in the database,
thereafter further checks, including manual check through experienced
D
personnels, are done. After that exercise, if it is found that the person is
already registered, it rejects the enrolment application. One of their
main reasons for rejection is that multiple people would put their biometric
details like fingerprints for Aadhaar generation either as a fraudulent
exercise or by mistake, which also would get rejected. There were
many fakes and frauds in the earlier systems and several reports have E
found that almost 50% of the subsidies were getting pilfered away by
fakes and duplicates in the system. Then, there would also be several
such people who may have tried to defraud the Aadhaar enrolment
system as well but failed get multiple Aadhaar numbers due to the stringent
Aadhaar de-duplication process. Thus, the mere fact that 6.23 crore
F
enrolments have been rejected as biometric duplicates does not mean
that 6.23 crore people have been denied an Aadhaar number as has
been alleged by the petitioners. Any genuine person who does not have
an Aadhaar number and whose enrolment has been rejected can always
apply again for enrolment. It is worth noting that none of the de-duplication
rejects have come forward to lodge complaints either with the Authority G
or with the Government about denial of Aadhaar number. None of them
have even approached any Court of law. Evidently, the genuine residents
have got themselves re-enrolled and the rest are those who were trying
to reach the Aadhaar system by fraudulent means. That explains why
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180 SUPREME COURT REPORTS [2018] 8 S.C.R.

A no one has approached a court of law complaining denial of Aadhaar

number. All the enrolment packets received by UIDAI (accepted/
rejected) are archived in the CIDR irrespective of its status.
(8) If the figure of rejection of enrolment packets was 8 crore, as
on 2015, what is the total rejection figure for enrolment packets as on
B date? How many field studies/physical verification have been done to
ensure that these persons (who have been rejected) are indeed “False
or duplicate” enrolments?
Ans.: The total rejection figure for enrolment packets is 18.0 cr.
as on March 26, 2018. These rejections are due to various technical
C reasons like: (i) data quality reject such as address incomplete, name
incomplete, use of expletives in names, address etc. photo is of object,
photo of photo, age photo mismatch etc.; and (ii) OSI validation reject
such as operator / supervisor / introducer validation failed, operator /
supervisor / introducer / Head of Family biometric validation failed etc.
D Those whose enrolments have been rejected for any reason
and who do not have Aadhaar can re-enrol and obtain Aadhaar. Rejection
of enrolments do not mean that the person will never be able to get
Aadhaar.
(9) What does “any other appropriate response” under Section
E 8(4) of the Aadhaar Act include?
Ans.: “Any other appropriate responses” includes e-KYC or
limited e-KYC data. As per Regulation 3 of Authentication Regulations,
UIDAI provides two types of authentication facilities, namely -
(i) Yes/No authentication facility; and
F
(ii) e-KYC authentication facility.
In Yes/No authentication, UIDAI provides the response as Yes or
No along with relevant error codes, if any.
In e-KYC authentication, UIDAI provides the demographic data
G along with photograph and in case of mismatch/error, the relevant error
codes.
54. Questions and Answers to the queries raised by the petitioners
in W.P. (C) No. 829 of 2013 entitled ‘S.G. Vombatkere & Anr. v. Union
of India
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 181
[A. K. SIKRI, J.]

(1) Please confirm that no UIDAI official verifies the correctness A

of documents offered at the stage of enrolment/updating.
Ans.: As per UIDAI process, the verification of the documents
is entrusted to the Registrar. For Verification based on Documents, the
verifier present at the Enrolment Centre will verify the documents.
Registrars/Enrolment agency must appoint personnel for the verification B
of documents.
(2) Please confirm that UIDAI does not know whether the
documents shown at the time of enrolment/updating are genuine or false.
Ans.: The answer is same as in (1) above.
C
(3) Please confirm:
(a) UIDAI does not identify the persons it only matches the
biometric information received at the time of authentication with its
records and provides a Yes/No response;
Ans.: Biometric authentication of an Aadhaar number holder is D
always performed as 1:1 biometric match against his/her Aadhaar number
(identity) in CIDR. Based on the match, UIDAI provides Yes or No
response. A “Yes” response means a positive identification of the Aadhaar
number holder.
Each enrolment is biometrically de-duplicated against all (1.2 E
billion) residents to issue the Aadhaar number (or Unique Identity).
(b) UIDAI takes no responsibility with respect to the correctness
of the name, date of birth or address of the person enrolled.
Ans.: The Name/Address/DOB are derived from the Proof of
Identity (POI)/Proof of Address (POA) documents submitted during F
enrolments.
The enrolment/update packet (encrypted) retains a scanned copy
of the POI/POA documents used for the enrolment which can be
reviewed in case of dispute.
G
UIDAI maintains the update history of each Aadhaar number
related to changes in name, address, date of birth etc.
(4) Please confirm:
(a) UIDAI takes no responsibility with respect to the correct
identification of a person. H
182 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Ans.: Please refer to Answer (1) above. Additionally, it may be

stated that enrolment of Aadhaar is done through a resident enrolment
process and verification of the POI/POA document is done against the
acceptable documents, as per the UIDAI valid list of documents as
provided in Schedule II and III Aadhaar (Enrolment and Update)
Regulations, 2016 read with Regulation 10.
B
UIDAI takes responsibility in creating and implementing standards,
ensuring matching systems installed in CIDR work as they are designed
to do, and providing options to Aadhaar holders in terms of controlling
their identity (such as updating their data, locking their biometrics, etc.)
and accessing their own authentication records. One of the key goals of
C Aadhaar is to issue a unique identity for the residents of India. Hence,
each enrolment is biometrically de-duplicated against all (1.2 billion)
residents to issue the Aadhaar number (or Unique Identity).
Section 4 of Aadhaar lays down the properties of an Aadhaar
number. Sub-section (3) of Section 4 reads as under:
D
“(3) An Aadhaar number, in physical or electronic form subject to
authentication and other conditions, as may be specified by
regulations, may be accepted as proof of identity of the Aadhaar
number holder for any purpose.”

E The requesting entities are at liberty to use any or multiple of

authentication mode available under Regulation 4 of Aadhaar
(Authentication) Regulation, 2016 as per their requirements and needs
of security etc.
(b) The biometric authentication is based on a probabilistic match
F of the biometric captured during authentication and the record stored
with CIDR.
Ans.: Biometric authentication is based on 1:1 matching and,
therefore, in that sense it is not probabilistic. If biometrics are captured
it will lead to successful authentication. If biometrics are not well
captured during authentication or an impostor tries authentication, it will
G
lead to authentication failure. Aadhaar Proof of Concept studies show
that a vast majority of residents (>98%) can successfully authenticate
using biometric modalities such fingerprints and/or iris.
However, the Aadhaar Act and Regulations provides that an
Aadhaar number holder cannot be denied service due to the failure of
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 183
[A. K. SIKRI, J.]

Aadhaar authentication. Hence, all Aadhaar applications must implement A

exception processes. Possible methods to implement the exception
process include:
(i) Family Based Authentication: Family based applications such
as PDS or Health applications may allow authentication by family
members to allow resident to avail services. B
(ii) Alternate Modalities: Some applications may use different
modalities for exception handling. Alternate modalities include:
(a) Iris Authentication
(b) OTP Authentication (if allowed by policy) C
(iii) Biometric Fusion: UIDAI is introducing face authentication
as secondary authentication factor to reduce the rate of authentication
failures, especially for senior citizens. At this time, face authentication
will be used only conjunction with another authentication factor such as
finger/iris/OTP. D
(a) Face + Finger Fusion
(b) Face + Iris Fusion
(c) Face + OTP Fusion
(iv) Non Aadhaar Based Exception process: Applications may E
implement non-Aadhaar based exception process to ensure that no
resident is denied service. Applications need to monitor the use of
exceptions in their applications to prevent misuse of the exception process.
(v) Accordingly, DBT Mission Cabinet Secretariat had issued a
detailed circular dated December 19, 2017 regarding use of Aadhaar in F
benefit schemes of Government – exception handling.
(5) Please confirm that with respect to individuals under 15 years
and over 60 years of age, biometric authentication is likely to fail due to
changes in/fading of biometrics such as fingerprints.
Ans.: Though there is no conclusive evidence to say that biometric G
authentication success is dependent upon age, slightly higher
authentication failure rates have been observed only for fingerprints for
senior citizens above the age of 70. A number of exception processes
are provided in answer to Question 4(b) above to prevent denial of service
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184 SUPREME COURT REPORTS [2018] 8 S.C.R.

A for failure of authentication. Further, in case of any issue in biometric

authentication, an Aadhaar number holder may update his/her biometric
at any of the Aadhaar enrolment centres, which is also provided for in
the Aadhaar Act.
(6) Please confirm that the reasons why over 49000 enrolment
B operators were blacklisted include: (i) failure to verify documents
presented; (ii) failure to maintain records of documents submitted; (iii)
misuse of information submitted; and (iv) aiding or abetting false
enrolments?
Ans.: UIDAI has a policy to enforce the process guidelines and
C data quality check during the enrolment process. 100% of the enrolments
done by operators undergoes a quality assurance check. If any Aadhaar
enrolment is found to be not as per the UIDAI process, the enrolment
itself gets rejected and Aadhaar is not generated. If such mistake by an
operator crosses a threshold defined in the policy, the operator is
blacklisted/ removed from the UIDAI ecosystem. As such, of the 49,000
D operators who have been blacklisted/removed from the UIDAI eco-
system, all the enrolments which were in violation of the process were
rejected in the QA stage. Enrolment operators may be blacklisted for
the following reasons:
• illegally charging the resident for Aadhaar enrolment
E
• poor demographic data quality
• invalid biometric exceptions
• other process malpractice
F (7) Please confirm:
(a) At the stage of enrolment, there is no verification as to whether
a person is an illegal immigrant.
(b) At the stage of enrolment, there is no verification about a
person being resident in India for 182 days or more in the past 12 months.
G
(c) Foreign nationals may enrol and are issued Aadhaar numbers.
(d) Persons retain their Aadhaar number even after they cease to
be resident. This is true of foreign nationals as well.

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 185
[A. K. SIKRI, J.]

Ans.: A
(a) At the time of enrolment, verification is done based upon
documents provided by the resident. In case any violation of prescribed
guidelines comes to light, the concerned Aadhaar is omitted/deactivated.
(b) This has been included through the enrolment form where
resident undertakes and signs the disclosure: B
“Disclosure under Section 3(2) of the Aadhaar (Targeted Delivery
of Financial And Other Subsidies, Benefits and Services) Act,
2016
I confirm that I have been residing in India for at least 182 days in
the preceding 12 months & information (including biometrics) C
provided by me to the UIDAI is my own and is true, correct and
accurate. I am aware that my information (including biometrics)
will be used for generation of Aadhaar and authentication. I
understand that my identity information (except core biometric)
may be provided to an agency only with my consent during
D
authentication or as per the provisions of the Aadhaar Act. I
have a right to access my identity information (except core
biometrics) following the procedure laid down by UIDAI.”
(c) Aadhaar is issued to the resident of India and the word
‘resident’ is defined in Section 2(v) of the Aadhaar Act. Aadhaar numbers
may be issued to foreign nationals who are resident in India. Section E
2(v) reads as under:
“ ‘resident’ means an individual who has resided in India for a
period or periods amounting in all to one hundred and eighty-two
days or more in the twelve months immediately preceding the
date of application for enrolment;” F
A foreign national fulfilling the above criteria is eligible for Aadhaar,
provided he submits the acceptable POI/POA document as per the
UIDAI valid list of documents.
(d) As per the Aadhaar Act, an Aadhaar number is issued to a
resident who has been residing in India for at least 182 days in the G
preceding 12 months. An Aadhaar number is issued to an individual for
life and may be omitted/deactivated in case of violation of prescribed
guidelines only. Ineligibility of a person to retain an Aadhaar number
owing to become non-resident may be treated as a ground for deactivation
of Aadhaar number and Regulation 28(l)(f) of the Aadhaar Enrolment
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186 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Regulations. This is in keeping with Section 31(1) and (3) of the Aadhaar
Act wherein it is an obligation on an Aadhaar number holder to inform
the UIDAI of changes in demographic information and for the Authority
to make the necessary alteration.
(8) Please confirm the Points Of Service (POS) biometric readers
B are capable of storing biometric information.
Ans.: UIDAI has mandated use of Registered Devices (RD) for
all authentication requests. With RDs, biometric data is signed within
the device/RD service using the provider key to ensure it is indeed
captured live. The device provider RD service encrypts the PID block
C before returning to the host application. This RD service encapsulates
the biometric capture, signing and encryption of biometrics all within it.
Therefore, introduction of RD in Aadhaar authentication system rules
out any possibility of use of stored biometric and replay of biometrics
captured from other source. Requesting entities are not legally allowed
to store biometrics captured for Aadhaar authentication under Regulation
D 17(1)(a) of the Authentication Regulations.
(9) Referring to slide/page 13, please confirm that the architecture
under the Aadhaar Act includes: (i) authentication user agencies (e.g.
Kerala Dairy Farmers Welfare Fund Board); (ii) authentication service
agencies (e.g. Airtel); and (iii) CIDR.
E
Ans.: UIDAI appoints Requesting Entities (AUA/KUA) and
Authentication Service Agency (ASA) as per Regulation 12 of
Authentication Regulations. List of Requesting Entitles (AUA/KUA)
and Authentication Service Agency appointed by UIDAI is available on
UIDAI’s website. An AUA/KUA can do authentication on behalf of
F other entities under Regulation 15 and Regulation 16.
(10) Please confirm that one or more entitles in the Aadhaar
architecture described in the previous paragraph record the date and
time of the authentication, the client IP, the device ID and purpose of
authentication.
G
Ans.: UIDAI does not ask requesting entities to maintain any
logs related to IP address of the device, GPS coordinates of the device
and purpose of authentication. However, AUAs like banks, telecom
etc., in order to ensure that their systems are secure, frauds are managed,
they may store additional information as per their requirement under
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 187
[A. K. SIKRI, J.]

their respective laws to secure their system. Section 32(3) of the Aadhaar A
Act specifically prevents the UIDAI from either by itself or through any
entity under its control to keep or maintain any information about the
purpose of authentication.
Requesting entities are mandated to maintain following logs as
per Regulation 18 of the Authentication Regulations. These are: B
(i) the Aadhaar number against which authentication is sought;
(ii) specified parameters of authentication request submitted;
(iii) specified parameters received as authentication response;
(iv) the record of disclosure of information to the Aadhaar number C
holder at the time of authentication; and
(v) record of consent of the Aadhaar number holder for
authentication, but shall not, in any event, retain the PID
information.
D
Further, even if a requesting entity captures any other data as per
their own requirement, UIDAI will only audit the authentication logs
maintained by the requesting entity as per Regulation 18(1) of the
Authentication Regulations.
ASAs are not permitted to maintain any logs related to IP address
of the device, GPS coordinates of the device etc. ASAs are mandated E
to maintain logs as per Regulation 20 of the Authentication Regulations:
(i) identity of the requesting entity;
(ii) parameters of authentication request submitted; and
(iii) parameters received as authentication response. F
Provided that no Aadhaar number, PID information, device identity
related data and e-KYC response data, where applicable, shall be
retained.
(11) Referring to slide/page 7 and 14, please confirm that
G
‘traceability’ features enable UIDAI to track the specific device and its
location from where each and every authentication takes place.
Ans.: UIDAI gets the AUA code, ASA code, unique device code,
registered device code used for authentication. UIDAI does not get
any information related to the IP address or the GPS location from where
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188 SUPREME COURT REPORTS [2018] 8 S.C.R.

A authentication is performed as these parameters are not part of

authentication (v2.0) and e-KYC (v2.1) API UIDAI would only know
from which device the authentication has happened, through which AUA/
ASA etc. This is what the slides meant by traceability. UIDAI does not
receive any information about at what location the authentication device
is deployed, its IP address and its operator and the purpose of
B
authentication. Further, the UIDAI or any entity under its control is
statutorily barred from collecting, keeping or maintaining any information
about the purpose of authentication under Section 32(3) of the Aadhaar
Act.
Summing up the Scheme:
C
55. The whole architecture of Aadhaar is devised to give unique
identity to the citizens of this country. No doubt, a person can have
various documents on the basis of which that individual can establish her
identify. It may be in the form of a passport, Permanent Account Number
(PAN) card, ration card and so on. For the purpose of enrolment itself
D number of documents are prescribed which an individual can produce
on the basis of which Aadhaar card can be issued. Thus, such documents,
in a way, are also proof of identity. However, there is a fundamental
difference between the Aadhaar card as a mean of identity and other
documents through which identity can be established. Enrolment for
E Aadhaar card also requires giving of demographic information as well
as biometric information which is in the form of iris and fingerprints.
This process eliminates any chance of duplication. It is emphasised that
an individual can manipulate the system by having more than one or
even number of PAN cards, passports, ration cards etc. When it comes
to obtaining Aadhaar card, there is no possibility of obtaining duplicate
F card. Once the biometric information is stored and on that basis Aadhaar
card is issued, it remains in the system with the Authority. Wherever
there would be a second attempt for enrolling for Aadhaar and for this
purpose same person gives his biometric information, it would immediately
get matched with the same biometric information already in the system
G and the second request would stand rejected. It is for this reason the
Aadhaar card is known as Unique Identification (UID). Such an identity
is unparalleled.
56. There is, then, another purpose for having such a system of
issuing unique identification cards in the form of Aadhaar card. A glimpse
H thereof is captured under the heading ‘Introduction’ above while
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 189
[A. K. SIKRI, J.]

mentioning how and under what circumstances the whole project was A
conceptualised. To put it tersely, in addition to enabling any resident to
obtain such unique identification proof, it is also to empower marginalised
section of the society, particularly those who are illiterate and living in
abject poverty or without any shelter etc. It gives identity to such persons
also. Moreover, with the aid of Aadhaar card, they can claim various
B
privileges and benefits etc. which are actually meant for these people.
Identity of a person has a significance for every individual in his/
her life. In a civilised society every individual, on taking birth, is given a
name. Her place of birth and parentage also becomes important as she
is known in the society and these demographic particulars also become
important attribute of her personality. Throughout their lives, individuals C
are supposed to provide such information: be it admission in a school or
college or at the time of taking job or engaging in any profession or
business activity, etc. When all this information is available in one place,
in the form of Aadhaar card, it not only becomes unique, it would also
qualify as a document of empowerment. Added with this feature, when D
an individual knows that no other person can clone her, it assumes greater
significance.
57. Thus, the scheme by itself can be treated as laudable when it
comes to enabling an individual to seek Aadhaar number, more so, when
it is voluntary in nature. Howsoever benevolent the scheme may be, it E
has to pass the muster of constitutionality. According to the petitioners,
the very architecture of Aadhaar is unconstitutional on various grounds,
glimpse whereof can be provided at this stage:
Gist of the challenge to the Aadhaar Scheme as well as the
Act: F
58. The petitioners accept that the case at hand is unique, simply
because of the reason that the programme challenged here is itself without
precedent. According to them, no democratic society has adopted a
programme that is similar in its command and sweep. The case is about
a new technology that the Government seeks to deploy and a new G
architecture of governance that it seeks to build on this technology. The
petitioners are discrediting the Government’s claim that biometric
technology employed and the Aadhaar Act is greatly beneficial. As per
the petitioners, this is an inroad into the rights and liberties of the citizens
which the Constitution of India guarantees. It is intrusive in nature. At
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190 SUPREME COURT REPORTS [2018] 8 S.C.R.

A its core, Aadhaar alters the relationship between the citizen and the State.
It diminishes the status of the citizens. Rights freely exercised, liberties
freely enjoyed, entitlements granted by the Constitution and laws are all
made conditional, on a compulsory barter. The barter compels the citizens
to give up their biometrics ‘voluntarily’, allow their biometrics and
demographic information to be stored by the State and private operators
B
and then used for a process termed ‘authentication’. According to them,
by the very scheme of the Act and the way it operates, it has propensity
to cause ‘civil death’ of an individual by simply switching of Aadhaar of
that person. It is the submission of the petitioners that the Constitution
balances rights of individuals against State interest. The Aadhaar
C completely upsets this balance and skews the relationship between the
citizen and the State enabling the State to totally dominate the individual.
59. The challenge is directed at the constitutional validity of the
following facets of Aadhaar:
(i) The Aadhaar programme that operated between January 28,
D 2009 until the bringing into force of the Aadhaar Act on July
12, 2016.
(ii) The Aadhaar Act (and alternatively certain provisions of that
Act).

E (iii) Elements of the Aadhaar project or programme that continues

to operate, though not within the cover of the Aadhaar Act.
(iv) Specific Regulations framed under the Aadhaar Act,
illustratively the Aadhaar (Authentication) Regulations, 2016.
(v) A set of subordinate legislation in the form of statutory rules/
F regulations including the Money Laundering (Amendment)
Rules, 2017.
(vi) All notifications (nearly 139) issued under Section 7 of the
Aadhaar Act (assuming the Act is upheld) insofar as they make
Aadhaar mandatory for availing certain benefits/services/
G subsidies, including PDS, MGNREGA and social security
pension.
(vii) Actions on the part of the authorities to make Aadhaar
mandatory even where not covered by Section 7, inter alia:
Actions by CBSE, NEET, JEE and UGC requirements for
H scholarship.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 191
[A. K. SIKRI, J.]

(viii) Specifically, actions on part of the Government mandating A

linking of mobile phones and Aadhaar vide DoT circular dated
March 23, 2017.
(ix)Section 139AA of the Income Tax Act, 1961 insofar as it
violates Article 21 by mandating linking Aadhaar to PAN and
requiring Aadhaar linkage for filing returns. B
60. Apart from the declaratory reliefs regarding ultra vires and
certiorari to quash the provisions/actions enumerated above, there are
certain other reliefs that are also sought, including:
(i) Suitable declarations regarding the physical autonomy of a
person over her own body qua the Indian State. C

(ii) Mandatory directions requiring the respondents to give an

option to persons who are enrolled with the Aadhaar programme
to opt out and to delete the data with suitable certification for
compliance.
D
(iii) Mandatory directions to all concerned authorities that should
the Aadhaar Act, etc. be upheld, nevertheless, every person
must be entitled to avail services, benefits etc. through
alternative means of identification. Negatively, nothing can be
withheld from a citizen merely because he/she does not have
an Aadhaar Card or does not wish to use their Aadhaar Card. E
(iv) Mandatory directions consistent with the fundamental right
to privacy and the right of a citizen to be let alone that no
electronic trial or record of his/her authentication be maintained.
61. On the aforesaid premise, the petitioners point out following
F
heads of challenge:
Surveillance:
62. The project creates the architecture for pervasive surveillance
and unless the project is stopped, it will lead to an Orwellian State where
every move of the citizen is constantly tracked and recorded by the G
State. The architecture of the project comprises a Central Identities
Data Repository (CIDR) which stores and maintains authentication
transaction data. The authentication record comprises the time of
authentication and the identity of the requesting entity. Based on this
architecture it is possible for the State to track down the location of the
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192 SUPREME COURT REPORTS [2018] 8 S.C.R.

A person seeking authentication. Since the requesting entity is also

identified, the activity that the citizen is engaging in is also known.
Violation of Fundamental Right to Privacy:
63. The fundamental right to privacy is breached by the Aadhaar
project and the Aadhaar Act in numerous ways. Following are the
B illustrations given by the petitioners:
(a) Between 2009-10 and July 2016 the project violated the right
to privacy with respect to personal demographic as well as
biometric information collected, stored and shared as there was
no law authorising these actions.
C
(b) During both the pre-Act and post-Act periods, the project
continues to violate the right to privacy by requiring individuals to
part with demographic as well as biometric information to private
enrolling agencies.

D (c) By enabling private entities to use the Aadhaar authentication

platform, the citizen’s right to informational privacy is violated
inasmuch as the citizen is compelled to ‘report’ his/her actions to
the State.
(d) Even where a person is availing of a subsidy, benefit or service
from the State, mandatory authentication through the Aadhaar
E
platform (without an option to the citizen to use an alternative
mode of identification) violates the right to informational privacy.
(e) With Aadhaar being made compulsory for holding a bank
account, operating a cell phone, having a valid PAN, holding mutual
funds, securing admission to school, taking a board examination,
F
etc. the citizen has no option but to obtain Aadhaar. Compelling
the citizen to part with biometric information violates individual
autonomy and dignity.
(f) In a digital society an individual has the right to protect himself
by controlling the dissemination of personal information, including
G biometric information. Compelling an individual to establish his
identity by planting her biometric at multiple points of service
violates privacy involving the person.
(g) The seeding of Aadhaar in distinct databases enables the content
of information about an individual that is stored in different silos to
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 193
[A. K. SIKRI, J.]

be aggregated. This enables the State to build complete profiles A

of individuals violating privacy through the convergence of data.
Limited Government:
64. A fundamental feature of the Constitution is the sovereignty
of the people with limited Government authority. The Constitution limits
governmental authority in various ways, amongst them Fundamental B
Rights, the distribution of powers amongst organs of the State and the
ultimate check by way of judicial review. The Aadhaar project is
destructive of the limited Government. The Constitution is not about the
power of the State, but about the limits on the power of the State. Post
Aadhaar, the State will completely dominate the citizen and alter the C
relationship between citizen and the State. The features of a totalitarian
state is seen from:
(a) A person cannot conduct routine activities such as operating a
bank account, holding an investment in mutual funds, receiving
government pension, receiving scholarship, receiving food rations, D
operating a mobile phone without the State knowing about these
activities.
(b) The State can build a profile of the individual based on the trial
of authentication from which the nature of the citizen’s activity
can be determined. E
(c) By disabling Aadhaar the State can cause civil death of the
person.
(d) By making Aadhaar compulsory for other activities such as
air travel, rail travel, directorship in companies, services and
benefits extended by the State Governments and Municipal F
Corporations, etc. there will be virtually no zone of activity left
where the citizen is not under the gaze of the State. This will
have a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy. The
State is pervasive, and dignity of the individual stands extinguished. G
(f) This is an inversion of the accountability in the Right to
Information age: instead of the State being transparent to the
citizen, it is the citizen who is rendered transparent to the State.

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194 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Impugned Act illegally passed as a ‘Money Bill’:

65. The Bill No. 47 of 2016 introduced in the Lok Sabha and
which upon passage became the impugned Act was not a Money Bill in
terms of Article 110 of the Constitution of India. Even though the object
and purpose of the impugned legislation states that it is to be used for the
B delivery of subsidies, benefits and services, expenditure for which is
incurred from the Consolidated Fund of India, the scope of the impugned
Act is far beyond what is envisaged under Article 110. Inasmuch as the
impugned Act has not followed the constitutional procedure mandated
for the passage of a law by disguising the statute as a ‘Money Bill’,
there is no valid legislative process that has been followed in this case.
C The legislative process being colourable and since judicial review extends
wherever Part III rights are violated, the Aadhaar Act is liable to be
struck down.
Procedure followed violates Articles 14 and 21 of the
Constitution:
D
66. The procedure adopted by the respondents, both pre-Act and
post-Act, is arbitrary and in violation of Articles 14 and 21 of the
Constitution because:
(a) There is no informed consent at the time of enrolment.
E Individuals are not told about crucial aspects such as potential
misuse of the information, the commercial value of the information,
the storage of information in a centralised database, that the
information supplied could be used against the individual in criminal
proceedings pursuant to a court order, there is no opt-out option,
the entire enrolment process is conducted by private entities without
F any governmental supervision, etc.
(b) UIDAI has no direct relationship with the enrolling agency
which collects sensitive personal information (biometric and
demographic).
(c) The data collected and uploaded in to the CIDR is not verified
G
by any Government official designated by the UIDAI. The data
collected and stored lacks integrity.
(d) The procedure at the stage of enrolment and authentication
enables the enrolling agency as well as the ‘requesting entity’ to
capture, store and misuse/use the biometric as well as demographic
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 195
[A. K. SIKRI, J.]

information without the UIDAI having any control over such A

misuse/use.
Unreliability of Biometrics and Exclusion:
67. The foundation of the project, i.e. biometrics, is an unreliable
and untested technology. Moreover, biometric exceptions severely erode
reliability. The biometric authentication system works on a probabilistic B
model. Consequently, entitlements are reduced from certainty to a chance
delivery where the biometrics match. Across the country several persons
are losing out on their entitlements, for say food rations, because of a
biometric mismatch resulting in them being excluded from various welfare
schemes. The project is not an ‘identity’ project but an ‘identification’ C
exercise. Unless the biometrics work, a person in flesh and blood, does
not exist for the State.
Illegal Object:
68. It is submitted before us that the objective of creating a single
pervasive identification over time is itself illegal. There are several facets D
to the illegality and amongst them is the very negation of an individual
citizen’s freedom to identify through different means. The coercive
foundation of the impugned Act is in substance an illegal objective that
renders the statute ultra vires Article 14 of the Constitution of India.
Democracy, Identity and Choice: E
69. A citizen or resident in a democratic society has a choice to
identify himself/herself through different modes in the course of his/her
interactions generally in society as well as his/her interactions with the
State. Mandating identification by only one highly intrusive mode is
excessive, disproportionate and violates Articles 14, 19 and 21. F
Children:
70. As per the petitioners, there is no justification to include children
in the Aadhaar programme for various reasons.
71. It may also be recorded at this juncture itself that insofar as G
the Aadhaar Act is concerned, following provisions thereof are specifically
attacked as unconstitutional:
(i) Section 2(c) and 2(d) - authentication and authentication record,
read with Section 32
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196 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) Section 2(h) read with Section 10 of CIDR

(iii) Section 2(l) read with Regulation 23 of the Aadhaar (Enrolment
and Updates) Regulation - ‘enrolling agency’
(iv) Section 2(v) - ‘resident’
B (v) Section 3 – Aadhaar Number
(vi) Section 5 – Special treatment to children
(vii) Section 6 – Update of information
(viii) Section 7
C (ix) Section 8
(x) Section 9
(xi) Chapter IV – Sections 11 to 23
(xii) Sections 23 and 54 – excessive delegation
D (xiii) Section 23(2)(g) read with Chapter VI & VII – Regulations
27 to 32 of the Aadhaar (Enrolment and Update) Regulations,
2016
(xiv) Section 29
(xv) Section 33
E
(xvi) Section 47
(xvii) Section 48 – Power of Central Government to supersede
UIDAI
(xviii) Section 57
F
(xix) Section 59
Some Introductory Remarks:
72. Before proceeding further, it would be necessary to state here
the approach which we have adopted in dealing with various issues that
G are raised in these petitions. That may help in understanding the manner
in which the matter is dealt with. This necessitates some introductory
remarks:
(i) We may remark at this stage itself that many of the heads of
challenge which are taken note of above are overlapping and, therefore,
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 197
[A. K. SIKRI, J.]

discussion on one aspect may provide substantial answers to the arguments A

advanced under the other head of challenge as well. Our endeavour,
therefore, would be to eschew the repetitive discussion. However, our
anxiety to bring clarity and also in order to have continuity of thought
while discussing a particular head, may have led to some repetitions at
different places. In any case, we would be dealing with the various
B
heads of challenge, one by one, so as to cover the entire spectrum.
(ii) In order to have a smooth flow of discussion, we are going to
formulate the questions which arise in all these petitions and then decide
those issues. Since, number of advocates7 appeared on both sides, many
of the arguments addressed by them were overlapping and repetitive.
In this scenario, we deem it proper to collate the arguments of all the C
counsel and present the same while undertaking the discussion on each
of the issues. Thus, in the process, we would not be referring to each
counsel and her arguments. We may, however, intend to place on record
that all the counsel on both sides had taken the advocacy to its highest
level by presenting all possible nuances of the complex issues involved. D
In the process, plethora of literature on such issues, including the law
prevailing across the Globe was cited. We, therefore, place on record
our appreciation of the sublime nature of lawyering in this case.
(iii) As pointed out above, many number of foreign judgments
were cited during arguments. The history of this Court reflects that this E
Court has liberally accepted the good practices, rules of interpretation
and norms of constitutional courts of other jurisdictions. In fact, in drafting
Indian Constitution itself, the framing fathers had studied various foreign
models and adopted provisions from different Constitutions after deep
reflection. Constitutional influences of system prevailing in some of the
countries on Indian Constitution can be summarised as under: F
F ro m UK - Parliament ary Type of Government
- Cabinet Sys tem of M inisters
- Bicameral Parl iam ent
- Lower House m ore powerful
- Council o f Minsters responsible to Lo wer
G
House
7
S/Shri Kapil Sibal, Gopal Subramaniam, P. Chidambaram, Shyam Divan, K.V.
Viswanathan, Neeraj Kishan Kaul, C.U. Singh, Anand Grover, Sanjay R. Hegde, Arvind
P. Datar, V. Giri, Rakesh Dwivedi, Jayant Bhushan, Sajan Poovayya, P.V. Surendra
Nath, Senior Advocates, K.K. Venugopal, Attorney General for India, Tushar Mehta,
Additional Solicitor General of India, Gopal Sankaranarayanan and Zoheb Hossain,
Advocates. H
198 SUPREME COURT REPORTS [2018] 8 S.C.R.

A From US - Written Constitution

- Executive head of State known as President
and his being the Supreme Commander of
the Armed Forces
- Vice-President as the ex-officio Chairman of
Rajya Sabha
B - Bill of Rights
- Supreme Court
- Provision of States
- Independence of Judiciary and judicial
review
- Preamble
C - Removal of Supreme Court and High Court
Judges
From USSR - Fundamental Duties
- Five Year Plan
From Australia - Concurrent List
- Language of the preamble
D - Provision regarding trade, commerce and
intercourse
From Japan - Law on which the Supreme Court function
From Weimar - Suspension of Fundamental Rights during
Constitution of the emergency
Germany
E From Canada - Scheme of federation with a strong centre
- Distribution of powers between the centre
and the states and placing residuary powers
with the centre
From Ireland - Concept of Directive Principles of States
Policy
F - Method of election of President
- Nomination of members in the Rajya Sabha
by the President

It was, therefore, but natural to find out the manner in which

particular provisions have been interpreted by the constitutional courts
G
of the aforesaid countries. Case law of this Court would reflect this for
interpreting the provisions relating to ‘Inter-State Trade, Commerce &
Intercourse’. The case law of the Australian High Court is liberally
referred as this Chapter is influenced by the provisions contained in the
Australian Constitution. Likewise, for interpreting provisions of Part IX
H of the Constitution on ‘Relations between the Union and the States’
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 199
[A. K. SIKRI, J.]

where Canadian model is followed, the judgments of Canadian Supreme A

President Court have been cited by this Court from time to time. Influence of
ander of U.S. Constitutionalism, tempered by the wish to preserve India’s own
characteristics, while interpreting chapter relating to fundamental rights
irman of as well as power of judicial review is also discernible. A critical analysis
of the various judgments of this Court, where foreign precedents are
B
cited8, formulates four typologies of use, namely:
(a) Where the court relies on foreign precedents for guidance on
judicial general constitutional principles and when necessary to;
(b) Where the court frames the issue posed for adjudication and/
or to formulate evaluative test and frameworks;
gh Court C
(c) To distinguish the country’s context from the foreign one9;
(d) To ‘read’ in the Constitution implied or unenumerated rights 10.
It can be said that though this Court has been liberally relying
upon the judgments of the constitutional courts of other countries,
erce and particularly when it comes to human rights discourse, at the same time, D
in certain situations, note of caution is also added to give a message that
nction the judgment of other jurisdiction cannot be relied blindly and it would
s during depend as to whether a particular judgment will fit in Indian context or
not. As a matter of fact, in Basheshar Nath, the Court discussed the
doctrine of waiver in force in the United States and rejected it firmly
entre stating that: E
e centre
:...the doctrine of waiver enunciated by some American Judges in
y powers
construing the American Constitution cannot be introduced in our
Constitution...We are not for the moment convinced that this theory
of States
has any relevancy in construing the fundamental rights conferred
by Part III of the Constitution.” F
ya Sabha On the contrary, in Romesh Thappar, the Court completely based
its decision to strike down a law restricting the free circulation of
newspapers on two US precedents, Ex parte Jackson11 and Lovell v.
City of Griffin12, and affirmed that the protection of freedom of
8
Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore G
(2010)
9
Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr., 1959
Supp (1) SCR 528
10
Romesh Thappar v. State of Madras, 1950 SCR 594
11
Ex Parte Jackson, 96 US 727 (1878).
12
Lovell v. City of Griffin, 303 US 444 (1938).
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200 SUPREME COURT REPORTS [2018] 8 S.C.R.

A expression in India follows the maxim of Madison that the Court

transposed from its quotation in Near v. Minnesota13, according to which
‘it is better to leave a few of its noxious branches to their luxuriant
growth, than, by pruning them away, to injure the vigour of those yielding
the proper fruits’. Likewise, the role of foreign precedents in a majority
opinion is confirmed in the decision of His Holiness Kesavananda
B
Bharati Sripadagalvaru which clarifies Parliament’s power to amend
the Constitution. At the same time, looking to the use of foreign precedents
in this judgment, Justice S.M. Sikri (as His Lordship then was), dealing
with the interpretation of Article 368 of the Constitution, first of all,
highlighted that:
C “No other Constitution in the world is like ours. No other
Constitution combines under its wings such diverse peoples,
numbering now more than 550 millions [sic], with different
languages and religions and in different stages of economic
development, into one nation, and no other nation is faced with
D such vast socio-economic problems.
After this premise, however, His Lordship accepts, in order to
define what an ‘amendment’ is according to the Indian Constitution, the
reasoning of Lord Greene in Bidie v. General Accident, Fire and Life
Assurance Corporation14 and that of Justice Holmes in Towne v.
E Eisner15, which affirm that to understand a word it is necessary to
understand the context in which it is inserted. To strengthen this, James
v. Commonwealth of Australia16 is also referred to.
We have stated the trend in brief with a purpose. Number of
judgments of U.K. Courts, German Supreme Court, European
F Commission of Human Rights (ECHR), U.S. Supreme Court etc. were
cited. However, there is no similarity in approach by these Courts in
deciding a particular issue by applying different principles, particularly
when it comes to the issues of data protection and privacy. In this
backdrop, it becomes necessary, while referring to these judgments, to
keep in mind the ethos, cultural background and vast socio-economic
G problems of this country and on that basis to accept a particular norm, or
13
Near v. Minnesota, 282 US 607 (1931) 717-18.
14
Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995,
998.
15
Towne v. Eisner, 245 US 418.
16
James v. Commonwealth of Australia, (1936) AC 578.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 201
[A. K. SIKRI, J.]

for that matter, to formulate a constitutional norm which is relevant in A

our context. That is the endeavour which is made by us.
(iv) Many arguments of the petitioners relate to the working of
the system. The petitioners had argued that the architecture of Aadhaar,
by its very nature, is probabilistic and, therefore, it may result in exclusion,
in many cases. Therefore, rather than extending subsidies, benefits and B
services to the section of society for which these are meant, it may have
the tendency to exclude them from receiving such subsidies, benefits
and services. The respondents, on the other hand, have stated on affidavit
that the attempt of the respondents would be to ensure that no individual
who is eligible for such benefits etc. is deprived form receiving those
benefits, even when in a particular case, it is found that on authentication, C
his fingerprints or iris are not matching and is resulting into failure. It
was clarified that since Aadhaar project is an ongoing project, there may
be some glitches in its working and there is a continuous attempt to
make improvements in order to ensure that it becomes foolproof over a
period of time. We have eschewed detailed discussion in respect of D
those arguments, which may not have much relevance when judging the
constitutional validity of the Act and the scheme. However, such
arguments of exclusion etc. leading to violation of Articles 14 and 21 are
dealt with at an appropriate stage. But the argument based on alleged
inaccurate claims of savings by the Authority/Union of India in respect
of certain programmes, like saving of USD 11 billion per annum due to E
the Aadhaar project, as well as savings in the implementation of the
MGNREGA scheme, LPG subsidy, PDS savings need not detain us for
long. Such rebuttals raised by the petitioners may have relevance insofar
as working of the Act is concerned. That by itself cannot be a ground to
invalidate the statute. F
(v) As mentioned above, notwithstanding the passions and emotions
evoked on both sides in equal measure, this Court has adopted a lambent
approach while dealing with the issues raised, having a posture of calmness
coupled with objective examination of the issues on the touchstone of
the constitutional provisions. We are in the age of constitutional G
democracy, that too substantive and liberal democracy. Such a
democracy is not based solely on the rule of people through their
representatives which is known as “formal democracy”. It also has
other precepts like rule of law, human rights, independence of judiciary,
separation of powers, etc. The framers of Indian Constitution duly
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202 SUPREME COURT REPORTS [2018] 8 S.C.R.

A recognized the aforesaid precepts of liberal and substantive democracy

with rule of law as an important and fundamental pillar. At the same
time, in the scheme of the Constitution, it is the judiciary which is assigned
the role of upholding rule of law and protecting the Constitution and
democracy.
B The essence of rule of law is to preclude arbitrary action. Dicey,
who propounded the rule of law, gave distinct meaning to this concept
and explained that it was based on three kindered features, which are as
follows:
(i) absence of arbitrary powers on the part of authorities;
C (ii) equality before law; and
(iii) the Constitution is part of the ordinary law of the land.
There are three aspects of the rule of law, which are as follows:
(a) A formal aspect which means making the law rule.
D
(b) A jurisprudential or doctrinal aspect which is concerned with
the minimal condition for the existence of law in society.
(c) A substantive aspect as per which the rule of law is concerned
with properly balancing between the individual and society.
E When we talk of jurisprudential rule of law, it includes certain
minimum requirements without which a legal system cannot exist and
which distinguished a legal system from an automatic system where the
leader imposes his will on everyone else. Professor Lon Fuller has
described these requirements collectively as the ‘inner morality of law’.
In addition to jurisprudential concept, which is important and an essential
F condition for the rule of law, the substantive concept of the rule of law is
equally important and inseparable norm of the rule of law in real sense.
It encompasses the ‘right conception’ of the rule of law propounded by
Dworkin. It means guaranteeing fundamental values of morality, justice,
and human rights, with a proper balance between these and the other
G needs of the society. Justice Aharon Barak, former Chief Justice of
Israel, has lucidly explained this facet of rule of law in the following
manner:
“The rule of law is not merely public order, the rule of law is
social justice based on public order. The law exists to ensure
H proper social life. Social life, however, is not a goal in itself but a
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 203
[A. K. SIKRI, J.]

means to allow the individual to live in dignity and develop himself. A

The human being and human rights underlie this substantive
perception of the rule of law, with a proper balance among the
different rights and between human rights and the proper needs
of society. The substantive rule of law “is the rule of proper law,
which balances the needs of society and the individual”. This is
B
the rule of law that strikes a balance between society’s need for
political independence, social equality, economic development, and
internal order, on the one hand, and the needs of the individual, his
personal liberty, and his human dignity on the other. The Judge
must protect this rich concept of the rule of law.”
The ‘rule of law’, which is a fine sonorous phrase, is dynamic and C
ever expanding and can be put alongside the brotherhood of man, human
rights and human dignity. About the modern rule of law, Professor Garner
observed:
“The concept in its modern dress meets a need that has been felt
throughout the history of civilization, law is not sufficient in itself D
and it must serve some purpose. Man is a social animal, but to
live in society he has had to fashion for himself and in his own
interest the law and other instruments of government, and as a
consequence those must to some extent limit his personal liberties.
The problem is how to control those instruments of government in E
accordance with the Rule of Law and in the interest of the
governed.”
Likewise, the basic spirit of our Constitution is to provide each
and every person of the nation equal opportunity to grow as a human
being, irrespective of race, caste, religion, community and social status. F
Granville Austin while analyzing the functioning of Indian Constitution in
first 50 years has described three distinguished strands of Indian
Constitution: (i) protecting national unity and integrity, (ii) establishing
the institution and spirit of democracy; and (iii) fostering social reforms.
The strands are mutually dependent and inextricably intertwined in what
he elegantly describes as a ‘seamless web’. And there cannot be social G
reforms till it is ensured that each and every citizen of this country is
able to exploit his/her potentials to the maximum. The Constitution,
although drafted by the Constituent Assembly, was meant for the people
of India and that is why it is given by the people to themselves as
expressed in the opening words “We the People...”. What is the most H
204 SUPREME COURT REPORTS [2018] 8 S.C.R.

A important gift to the common person given by this Constitution is

“fundamental rights” which may be called human rights as well.
Speaking for the vision of our founding fathers, in State of
Karnataka & Anr. v. Shri Ranganatha Reddy & Anr. 17, this Court
speaking through Justice Krishna Iyer observed:
B “The social philosophy of the Constitution shapes creative judicial
vision and orientation. Our nation has, as its dynamic doctrine,
economic democracy sans which political democracy is chimerical.
We say so because our Constitution, in Parts III and IV and
elsewhere, ensouls such a value system, and the debate in this
C case puts precisely this soul in peril….Our thesis is that the
dialectics of social justice should not be missed if the synthesis of
Parts III and Part IV is to influence State action and court
pronouncements. Constitutional problems cannot be studied in a
socio-economic vacuum, since socio-cultural changes are the
source of the new values, and sloughing off old legal thought is
D part of the process the new equity-loaded legality. A judge is a
social scientist in his role as constitutional invigilator and fails
functionally if he forgets this dimension in his complex duties.”
In Dattatraya Govind Mahajan v. State of Maharashtra18 the
spirit of our Constitution was explained thus:
E
“Our Constitution is a tryst with destiny, preamble with lucent
solemnity in the words ‘Justice – social, economic and political.’
The three great branches of Government, as creatures of the
Constitution, must remember this promise in their fundamental
role and forget it at their peril, for to do so will be a betrayal of
F chose high values and goals which this nation set for itself in its
objective Resolution and whose elaborate summation appears in
Part IV of the Paramount Parchment. The history of our country’s
struggle for independence was the story of a battle between the
forces of socio-economic exploitation and the masses of deprived
G people of varying degrees and the Constitution sets the new sights
of the nation…..Once we grasp the dharma of the Constitution,
the new orientation of the karma of adjudication becomes clear.
Our founding fathers, aware of our social realities, forged our
fighting faith and integrating justice in its social, economic and
17
(1977) 4 SCC 471
18
H (1977) 2 SCC 548
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 205
[A. K. SIKRI, J.]

political aspects. While contemplating the meaning of the Articles A

of the Organic Law, the Supreme Court shall not disown Social
Justice.”
In National Human Rights Commission v. State of Arunachal
Pradesh19, the Supreme Court explained it again, as under:
“We are a country governed by the Rule of Law. Our Constitution B
confers certain rights on every human being and certain other
rights on citizens. Every person is entitled to equality before the
law and equal protection of the laws.”
Looking the matter from this angle, when the judiciary is assigned
the role of upholding the rule of law, the first function of the judiciary is C
to protect the democracy as well as the Constitution. At the same time,
second role of the Court, which is equally important, is to bridge the gap
between the law and the society. In the process of undertaking this role,
a third role, which is of equal significance also springs up. Judiciary is
also to ensure that social and economic justice is meted out to the D
deserving lot by affirmative action of the State. Our attempt has been to
strive the balancing of competing Constitutional norms. The complex
issues are dealt with keeping in view this role of the Supreme Court as
assigned by the Constitution; albeit within the constitutional norms.
Scope of Judicial Review: E
73. The aforesaid discussion leads us to pick up and discuss another
strand viz. the scope of judicial review in such matters.
74. Judicial review means the Supremacy of law. It is the power
of the court to review the actions of the Legislature, the Executive and
the Judiciary itself and to scrutinize the validity of any law or action. It F
has emerged as one of the most effective instruments of protecting and
preserving the cherished freedoms in a constitutional democracy and
upholding principles such as separation of powers and rule of law. The
Judiciary, through judicial review, prevents the decisions of other branches
from impinging on the constitutional values. The fundamental nature of
G
the Constitution is that of a limiting document, it curtails the powers of
majoritarianism from hijacking the State. The power of review is the
shield which is placed in the hands of the most judiciaries of constitutional
democracies to enable the protection of the supreme document.
19
(1996) 1 SCC 742
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206 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 75. In Binoy Viswam v. Union of India & Ors.20, scope of judicial

review of legislative Act was described in the following manner:
“76. Under the Constitution, Supreme Court as well as High Courts
are vested with the power of judicial review of not only
administrative acts of the executive but legislative enactments
B passed by the legislature as well. This power is given to the High
Courts under Article 226 of the Constitution and to the Supreme
Court under Article 32 as well as Article 136 of the Constitution.
At the same time, the parameters on which the power of judicial
review of administrative act is to be undertaken are different from
the parameters on which validity of legislative enactment is to be
C examined. No doubt, in exercises of its power of judicial review
of legislative action, the Supreme Court, or for that matter, the
High Courts can declare law passed by Parliament or the State
Legislature as invalid. However, the power to strike down primary
legislation enacted by the Union or the State Legislatures is on
D limited grounds. Courts can strike down legislation either on the
basis that it falls foul of federal distribution of powers or that it
contravenes fundamental rights or other constitutional rights/
provisions of the Constitution of India. No doubt, since the Supreme
Court and the High Courts are treated as the ultimate arbiter in all
matters involving interpretation of the Constitution, it is the courts
E which have the final say on questions relating to rights and whether
such a right is violated or not. The basis of the aforesaid statement
lies in Article 13(2) of the Constitution which proscribes the State
from making “any law which takes away or abridges the right
conferred by Part III”, enshrining fundamental rights. It
F categorically states that any law made in contravention thereof,
to the extent of the contravention, be void.
77. We can also take note of Article 372 of the Constitution at
this stage which applies to pre-constitutional laws. Article 372(1)
reads as under:
G “372. Continuance in force of existing laws and their
adaptation.—(1) Notwithstanding the repeal by this
Constitution of the enactments referred to in Article 395 but
subject to the other provisions of this Constitution, all the laws
in force in the territory of India immediately before the
20
(2017) 7 SCC 59
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 207
[A. K. SIKRI, J.]

commencement of this Constitution shall continue in force A

therein until altered or repealed or amended by a competent
legislature or other competent authority.”
In the context of judicial review of legislation, this provision gives
an indication that all laws enforced prior to the commencement of
the Constitution can be tested for compliance with the provisions B
of the Constitution by courts. Such a power is recognised by this
Court in Union of India v. SICOM Ltd. In that judgment, it was
also held that since the term “laws”, as per Article 372, includes
common law the power of judicial review of legislation, which is a
part of common law applicable in India before the Constitution
came into force, would continue to vest in the Indian courts. C

78. …These contours of the judicial review are spelled out in the
clear terms in Rakesh Kohli, and particularly in the following
paragraphs: (SCC pp. 321-22 & 325-27, paras 16-17, 26-28 &
30)
D
“16. The statute enacted by Parliament or a State Legislature
cannot be declared unconstitutional lightly. The court must be
able to hold beyond any iota of doubt that the violation of the
constitutional provisions was so glaring that the legislative
provision under challenge cannot stand. Sans flagrant violation
of the constitutional provisions, the law made by Parliament or E
a State Legislature is not declared bad.
17. This Court has repeatedly stated that legislative enactment
can be struck down by court only on two grounds, namely (i)
that the appropriate legislature does not have the competence
to make the law, and (ii) that it does not (sic) take away or F
abridge any of the fundamental rights enumerated in Part III
of the Constitution or any other constitutional provisions. In
McDowell and Co. while dealing with the challenge to an
enactment based on Article 14, this Court stated in para 43 of
the Report as follows: (SCC pp. 737-38) G
‘43. … A law made by Parliament or the legislature can be
struck down by courts on two grounds and two grounds alone
viz. (1) lack of legislative competence, and (2) violation of any
of the fundamental rights guaranteed in Part III of the
Constitution or of any other constitutional provision. There is
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208 SUPREME COURT REPORTS [2018] 8 S.C.R.

A no third ground. … if an enactment is challenged as violative

of Article 14, it can be struck down only if it is found that it is
violative of the equality clause/equal protection clause enshrined
therein. Similarly, if an enactment is challenged as violative of
any of the fundamental rights guaranteed by sub-clauses (a)
to (g) of Article 19(1), it can be struck down only if it is found
B
not saved by any of the clauses (2) to (6) of Article 19 and so
on. No enactment can be struck down by just saying that it
is arbitrary or unreasonable. Some or the other constitutional
infirmity has to be found before invalidating an Act. An
enactment cannot be struck down on the ground that court
C thinks it unjustified. Parliament and the legislatures, composed
as they are of the representatives of the people, are supposed
to know and be aware of the needs of the people and what is
good and bad for them. The court cannot sit in judgment over
their wisdom.’
D xx xx xx
26. In Mohd. Hanif Quareshi, the Constitution Bench further
observed that there was always a presumption in favour of
constitutionality of an enactment and the burden is upon him,
who attacks it, to show that there has been a clear violation of
E the constitutional principles. It stated in para 15 of the Report
as under: (AIR pp. 740-41)
‘15. … The courts, it is accepted, must presume that the
legislature understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made
F manifest by experience and that its discriminations are based
on adequate grounds. It must be borne in mind that the
legislature is free to recognise degrees of harm and may confine
its restrictions to those cases where the need is deemed to be
the clearest and finally that in order to sustain the presumption
of constitutionality the court may take into consideration matters
G of common knowledge, matters of common report, the history
of the times and may assume every state of facts which can
be conceived existing at the time of legislation.’
27. The above legal position has been reiterated by a
Constitution Bench of this Court in Mahant Moti Das v. S.P.
H Sahi.
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 209
[A. K. SIKRI, J.]

28. In Hamdard Dawakhana v. Union of India, inter alia, A

while referring to the earlier two decisions, namely, Bengal
Immunity Co. Ltd. and Mahant Moti Das, it was observed in
para 8 of the Report as follows: (Hamdard Dawakhana case,
AIR p. 559)
‘8. Therefore, when the constitutionality of an enactment is B
challenged on the ground of violation of any of the articles in
Part III of the Constitution, the ascertainment of its true nature
and character becomes necessary i.e. its subject-matter, the
area in which it is intended to operate, its purport and intent
have to be determined. In order to do so it is legitimate to take
into consideration all the factors such as history of the legislation, C
the purpose thereof, the surrounding circumstances and
conditions, the mischief which it intended to suppress, the
remedy for the disease which the legislature resolved to cure
and the true reason for the remedy….’
In Hamdard Dawakhana, the Court also followed the D
statement of law in Mahant Moti Das and the two earlier
decisions, namely, Charanjit Lal Chowdhury v. Union of
India and State of Bombay v. F.N. Balsara and reiterated the
principle that presumption was always in favour of
constitutionality of an enactment. E
xx xx xx
30. A well-known principle that in the field of taxation, the
legislature enjoys a greater latitude for classification, has been
noted by this Court in a long line of cases. Some of these
decisions are Steelworth Ltd. v. State of Assam [Steelworth F
Ltd. v. State of Assam, 1962 Supp (2) SCR 589], Gopal Narain
v. State of U.P. [Gopal Narain v. State of U.P., AIR 1964
SC 370], Ganga Sugar Corpn. Ltd. v. State of U.P. [Ganga
Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980
SCC (Tax) 90], R.K. Garg v. Union of India [R.K. Garg v. G
Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and
State of W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A.
India Ltd., (2003) 5 SCC 239]”
(emphasis in original)
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210 SUPREME COURT REPORTS [2018] 8 S.C.R.

A xx xx xx
83. It is, thus, clear that in exercise of power of judicial review,
the Indian courts are invested with powers to strike down primary
legislation enacted by Parliament or the State Legislatures.
However, while undertaking this exercise of judicial review, the
B same is to be done at three levels. In the first stage, the Court
would examine as to whether impugned provision in a legislation
is compatible with the fundamental rights or the constitutional
provisions (substantive judicial review) or it falls foul of the federal
distribution of powers (procedural judicial review). If it is not found
to be so, no further exercise is needed as challenge would fail. On
C the other hand, if it is found that legislature lacks competence as
the subject legislated was not within the powers assigned in the
List in Schedule VII, no further enquiry is needed and such a law
is to be declared as ultra vires the Constitution. However, while
undertaking substantive judicial review, if it is found that the
D impugned provision appears to be violative of fundamental rights
or other constitutional rights, the Court reaches the second stage
of review. At this second phase of enquiry, the Court is supposed
to undertake the exercise as to whether the impugned provision
can still be saved by reading it down so as to bring it in conformity
with the constitutional provisions. If that is not achievable then
E the enquiry enters the third stage. If the offending portion of the
statute is severable, it is severed and the Court strikes down the
impugned provision declaring the same as unconstitutional.”
76. In support of the aforesaid proposition that an Act of the
Parliament can be invalidated only on the aforesaid two grounds, passages
F from various judgments were extracted21. The Court also noted the
observations from State of A.P. & Ors. v. MCDOWELL & Co. & Ors.22
wherein it was held that apart from the aforesaid two grounds, no third
ground is available to validate any piece of legislation. In the process, it
was further noted that in Rajbala & Ors. v. State of Haryana & Ors.23
G (which followed MCDOWELL & Co. case), the Court held that a
legislation cannot be declared unconstitutional on the ground that it is
‘arbitrary’ inasmuch as examining as to whether a particular Act is
21
State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka Kumar Thakur v. Union of
India, (2008) 6 SCC 1
22
(1996) 3 SCC 709
23
H (2016) 2 SCC 445
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 211
[A. K. SIKRI, J.]

arbitrary or not implies a value judgment and courts do not examine the A
wisdom of legislative choices, and, therefore, cannot undertake this
exercise.
77. The issue whether law can be declared unconstitutional on
the ground of arbitrariness has received the attention of this Court in a
Constitution Bench judgment in the case of Shayara Bano v. Union of B
India & Ors.24. R.F. Nariman and U.U. Lalit, JJ. discredited the ratio
of the aforesaid judgments wherein the Court had held that a law cannot
be declared unconstitutional on the ground that it is arbitrary. The Judges
pointed out the larger Bench judgment in the case of Dr. K.R.
Lakshmanan v. State of T.N. & Anr.25 and Maneka Gandhi v. Union
of India & Anr.26 where ‘manifest arbitrariness’ is recognised as the C
third ground on which the legislative Act can be invalidated. Following
discussion in this behalf is worthy of note:
“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of law, would D
violate Article 14. Further, there is an apparent contradiction in
the three-Judge Bench decision in McDowell [State of A.P. v.
McDowell and Co., (1996) 3 SCC 709] when it is said that a
constitutional challenge can succeed on the ground that a law is
“disproportionate, excessive or unreasonable”, yet such challenge E
would fail on the very ground of the law being “unreasonable,
unnecessary or unwarranted”. The arbitrariness doctrine when
applied to legislation obviously would not involve the latter
challenge but would only involve a law being disproportionate,
excessive or otherwise being manifestly unreasonable. All the
aforesaid grounds, therefore, do not seek to differentiate between F
State action in its various forms, all of which are interdicted if
they fall foul of the fundamental rights guaranteed to persons and
citizens in Part III of the Constitution.
88. We only need to point out that even after McDowell [State of
A.P. v. McDowell and Co., (1996) 3 SCC 709] , this Court has in G
fact negated statutory law on the ground of it being arbitrary and
therefore violative of Article 14 of the Constitution of India. In
24
(2017) 9 SCC 1
25
(1996) 2 SCC 226
26
(1978) 1 SCC 248
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212 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Malpe Vishwanath Acharya v. State of Maharashtra [Malpe

Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC
1] , this Court held that after passage of time, a law can become
arbitrary, and, therefore, the freezing of rents at a 1940 market
value under the Bombay Rent Act would be arbitrary and violative
of Article 14 of the Constitution of India (see paras 8 to 15 and
B
31).
xx xx xx
99. However, in State of Bihar v. Bihar Distillery Ltd. [State of
Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para
C 22, in State of M.P. v. Rakesh Kohli [State of M.P. v. Rakesh
Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], SCC at
paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State
of Haryana, (2016) 2 SCC 445], SCC at paras 53 to 65 and in
Binoy Viswam v. Union of India [Binoy Viswam v. Union of
India, (2017) 7 SCC 59], SCC at paras 80 to 82, McDowell [State
D of A.P. v. McDowell and Co., (1996) 3 SCC 709] was read as
being an absolute bar to the use of “arbitrariness” as a tool to
strike down legislation under Article 14. As has been noted by us
earlier in this judgment, McDowell [State of A.P. v. McDowell
and Co., (1996) 3 SCC 709] itself is per incuriam, not having
E noticed several judgments of Benches of equal or higher strength,
its reasoning even otherwise being flawed. The judgments,
following McDowell [State of A.P. v. McDowell and Co., (1996)
3 SCC 709] are, therefore, no longer good law.”
78. The historical development of the doctrine of arbitrariness
F has been noticed by the said Judges in Shayara Bano in detail. It
would be suffice to reproduce paragraphs 67 to 69 of the said judgment
as the discussion in these paras provide a sufficient guide as to how a
doctrine of arbitrariness is to be applied while adjudging the constitutional
validity of a legislation.

G “67. We now come to the development of the doctrine of

arbitrariness and its application to State action as a distinct doctrine
on which State action may be struck down as being violative of
the rule of law contained in Article 14. In a significant passage,
Bhagwati, J., in E.P. Royappa v. State of T.N. stated: (SCC p.
38, para 85)
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 213
[A. K. SIKRI, J.]

A
“85. The last two grounds of challenge may be taken up together
for consideration. Though we have formulated the third ground of
challenge as a distinct and separate ground, it is really in substance
and effect merely an aspect of the second ground based on
violation of Articles 14 and 16. Article 16 embodies the fundamental B
guarantee that there shall be equality of opportunity for all citizens
in matters relating to employment or appointment to any office
under the State. Though enacted as a distinct and independent
fundamental right because of its great importance as a principle
ensuring equality of opportunity in public employment which is so
vital to the building up of the new classless egalitarian society C
envisaged in the Constitution, Article 16 is only an instance of the
application of the concept of equality enshrined in Article 14. In
other words, Article 14 is the genus while Article 16 is a species.
Article 16 gives effect to the doctrine of equality in all matters
relating to public employment. The basic principle which, therefore, D
informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the words of
Bose, J., “a way of life”, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot countenance any
attempt to truncate its all-embracing scope and meaning, for to do E
so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
“cribbed, cabined and confined” within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn F
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14, and if it effects any matter
relating to public employment, it is also violative of Article 16. G
Articles 14 and 16 strike at arbitrariness in State action and ensure
fairness and equality of treatment. They require that State action
must be based on valid relevant principles applicable alike to all
similarly situate and it must not be guided by any extraneous or
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214 SUPREME COURT REPORTS [2018] 8 S.C.R.

A irrelevant considerations because that would be denial of equality.

Where the operative reason for State action, as distinguished from
motive inducing from the antechamber of the mind, is not legitimate
and relevant but is extraneous and outside the area of permissible
considerations, it would amount to mala fide exercise of power
and that is hit by Articles 14 and 16. Mala fide exercise of power
B
and arbitrariness are different lethal radiations emanating from
the same vice: in fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16.”
(emphasis supplied)
C 68. This was further fleshed out in Maneka Gandhi v. Union of
India, where, after stating that various fundamental rights must
be read together and must overlap and fertilise each other,
Bhagwati, J., further amplified this doctrine as follows: (SCC pp.
283-84, para 7)
D “The nature and requirement of the procedure under
Article 21
7. Now, the question immediately arises as to what is the
requirement of Article 14: what is the content and reach of the
great equalising principle enunciated in this article? There can
E be no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected
to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all-embracing scope and meaning,
for to do so would be to violate its activist magnitude. Equality
F is a dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority
in E.P. Royappa v. State of T.N. , namely, that: (SCC p. 38,
para 85)
G ‘85. … From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 215
[A. K. SIKRI, J.]

according to political logic and constitutional law and is therefore A

violative of Article 14….’
Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness B
pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test
of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary, fanciful
or oppressive; otherwise, it would be no procedure at all and
the requirement of Article 21 would not be satisfied.” C

(emphasis supplied)
69. This was further clarified in A.L. Kalra v. Project and
Equipment Corpn., following Royappa and holding that arbitrariness is
a doctrine distinct from discrimination. It was held: (A.L. Kalra case, D
SCC p. 328, para 19)
“19. … It thus appears well settled that Article 14 strikes at
arbitrariness in executive/administrative action because any
action that is arbitrary must necessarily involve the negation of
equality. One need not confine the denial of equality to a E
comparative evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per se
arbitrary itself denies equal of (sic) protection by law. The
Constitution Bench pertinently observed in Ajay Hasia case
and put the matter beyond controversy when it said: (SCC p.
741, para 16) F
‘16. … Wherever therefore, there is arbitrariness in State
action whether it be of the legislature or of the executive or of
an “authority” under Article 12, Article 14 immediately springs
into action and strikes down such State action.’
G
This view was further elaborated and affirmed in D.S. Nakara v.
Union of India . In Maneka Gandhi v. Union of India it was
observed that Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment. It is thus too late
in the day to contend that an executive action shown to be arbitrary
is not either judicially reviewable or within the reach of Article 14.” H
216 SUPREME COURT REPORTS [2018] 8 S.C.R.

A The same view was reiterated in Babita Prasad v. State of Bihar

, SCC at p. 285, para 31.”
This doctrine is, thus, treated as a facet of both Articles 14 and 21
of the Constitution.
79. We would like to record that we have proceeded on the
B premise that manifest arbitrariness also furnishes a ground on the basis
on which a legislative enactment can be judicially reviewed. In the
process, even the constitutional validity of Section 139AA of the Income
Tax Act, 1961 is given a fresh look on the touchstone of this norm.
Explaining the doctrine/principles on which the cases are
C to be decided:
80. Our discussion up to this stage, which gives a glimpse of the
attack to the Aadhaar scheme and the Aadhaar Act, spearheaded by the
petitioners, would reveal that in the forefront is the right to privacy and
that forms the main pillar on which the edifice of arguments is substantially
D constructed27. Inbuilt in this right to privacy is the right to live with
dignity, which is a postulate of right to privacy. In the process, discussion
leads to the issue of proportionality, viz. whether measures taken under
the Aadhaar Act satisfy the doctrine of proportionality. We would,
therefore, be well advised to explain these concepts, so that their
E application to the fact situation is undertaken with clear and stable norms
in mind.
Contours of Right to Privacy:
81. It stands established, with conclusive determination of the nine
Judge Bench judgment of this Court in K.S. Puttaswamy that right to
F privacy is a fundamental right. The majority judgment authored by Dr.
D.Y. Chandrachud, J. (on behalf of three other Judges) and five
concurring judgments of other five Judges have declared, in no uncertain
terms and most authoritatively, right to privacy to be a fundamental right.
This judgment also discusses in detail the scope and ambit of right to
privacy. The relevant passages in this behalf have been reproduced
G
above while taking note of the submissions of the learned counsel for
the petitioners as well as respondents. One interesting phenomenon
that is discerned from the respective submissions on either side is that
27
There are few other incidental and ancillary issues raised by the petitioners as well,
which we propose to discuss and deal with after answering these fundamental
H submissions.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 217
[A. K. SIKRI, J.]

both sides have placed strong reliance on different passages from this A
very judgment to support their respective stances. A close reading of
this judgment brings about the following features:
(i) Privacy has always been a natural right: The correct position
in this behalf has been established by a number of judgments starting
from Gobind v. State of M.P.28 Various opinions conclude that: B
(a) privacy is a concomitant of the right of the individual to exercise
control over his or her personality.
(b) Privacy is the necessary condition precedent to the enjoyment
of any of the guarantees in Part III.
C
(c) The fundamental right to privacy would cover at least three
aspects – (i) intrusion with an individual’s physical body, (ii) informational
privacy, and (iii) privacy of choice.
(d) One aspect of privacy is the right to control the dissemination
of personal information. And that every individual should have a right to D
be able to control exercise over his/her own life and image as portrayed
in the world and to control commercial use of his/her identity.
Following passages from different opinions reflect the aforesaid
proposition:
Dr. D.Y. Chandrachud, J.: E
42. Privacy is a concomitant of the right of the individual to exercise
control over his or her personality. It finds an origin in the notion
that there are certain rights which are natural to or inherent in a
human being. Natural rights are inalienable because they are
inseparable from the human personality. The human element in F
life is impossible to conceive without the existence of natural rights.
In 1690, John Lockehad in his Second Treatise of Government
observed that the lives, liberties and estates of individuals are as a
matter of fundamental natural law, a private preserve. The idea
of a private preserve was to create barriers from outside
interference. In 1765, William Blackstone in his Commentaries G
on the Laws of England spoke of a “natural liberty”. There were,
in his view, absolute rights which were vested in the individual by
the immutable laws of nature. These absolute rights were divided
into rights of personal security, personal liberty and property. The
28
(1975) 2 SCC 148 H
218 SUPREME COURT REPORTS [2018] 8 S.C.R.

A right of personal security involved a legal and uninterrupted

enjoyment of life, limbs, body, health and reputation by an individual.
xx xx xx
46. Natural rights are not bestowed by the State. They inhere in
human beings because they are human. They exist equally in the
B individual irrespective of class or strata, gender or orientation.
xx xx xx
318. Life and personal liberty are inalienable rights. These are
rights which are inseparable from a dignified human existence.
C The dignity of the individual, equality between human beings and
the quest for liberty are the foundational pillars of the Indian
Constitution.
S.A. Bobde, J. :
415. Therefore, privacy is the necessary condition precedent to
D the enjoyment of any of the guarantees in Part III. As a result,
when it is claimed by rights bearers before constitutional courts, a
right to privacy may be situated not only in Article 21, but also
simultaneously in any of the other guarantees in Part III. In the
current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all
rights helped up and made meaningful by the exercise of privacy.
E
This is not an exhaustive list. Future developments in technology
and social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that are not at
present evident to us.
R.F. Nariman, J. :
F
521. In the Indian context, a fundamental right to privacy would
cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some invasion
by the State of a person’s rights relatable to his physical body,
G such as the right to move freely;
• Informational privacy which does not deal with a person’s body
but deals with a person’s mind, and therefore recognises that an
individual may have control over the dissemination of material
that is personal to him. Unauthorised use of such information
H may, therefore lead to infringement of this right; and
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 219
[A. K. SIKRI, J.]

• The privacy of choice, which protects an individual’s autonomy A

over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating
to the body in Articles 19(1)(d) and (e) read with Article 21; ground
personal information privacy under Article 21; and the privacy of
choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument B
based on “privacy” being a vague and nebulous concept need not,
therefore, detain us.
xx xx xx
532. The learned counsel for the petitioners also referred to another C
important aspect of the right to privacy. According to the learned
counsel for the petitioner this right is a natural law right which is
inalienable. Indeed, the reference order itself, in para 12, refers to
this aspect of the fundamental right contained. It was, therefore,
argued before us that given the international conventions referred
to hereinabove and the fact that this right inheres in every individual D
by virtue of his being a human being, such right is not conferred
by the Constitution but is only recognised and given the status of
being fundamental. There is no doubt that the petitioners are
correct in this submission. However, one important roadblock in
the way needs to be got over. E
533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution
Bench of this Court arrived at the conclusion (by majority) that
Article 21 is the sole repository of all rights to life and personal
liberty, and, when suspended, takes away those rights altogether.
A remarkable dissent was that of Khanna, J. [ Khanna, J. was in F
line to be Chief Justice of India but was superseded because of
this dissenting judgment. Nani Palkhivala in an article written on
this great Judge’s supersession ended with a poignant sentence,
“To the stature of such a man, the Chief Justiceship of India can
add nothing.” Seervai, in his monumental treatise Constitutional
Law of India had this to say:”53. If in this Appendix the dissenting G
judgment of Khanna, J. has not been considered in detail, it is not
for lack of admiration for the judgment, or the courage which he
showed in delivering it regardless of the cost and consequences
to himself. It cost him the Chief Justiceship of India, but it gained
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220 SUPREME COURT REPORTS [2018] 8 S.C.R.

A for him universal esteem not only for his courage but also for his
inflexible judicial independence. If his judgment is not considered
in detail it is because under the theory of precedents which we
have adopted, a dissenting judgment, however valuable, does not
lay down the law and the object of a critical examination of the
majority judgments in this Appendix was to show that those
B
judgments are untenable in law, productive of grave public mischief
and ought to be overruled at the earliest opportunity. The conclusion
which Justice Khanna has reached on the effect of the suspension
of Article 21 is correct. His reminder that the rule of law did not
merely mean giving effect to an enacted law was timely, and was
C reinforced by his reference to the mass murders of millions of
Jews in Nazi concentration camps under an enacted law. However,
the legal analysis in this Chapter confirms his conclusion though
on different grounds from those which he has given.” (at Appendix
p. 2229).] The learned Judge held: (SCC pp. 747 & 751, paras
525 & 531)
D
“525. The effect of the suspension of the right to move any
court for the enforcement of the right conferred by Article 21,
in my opinion, is that when a petition is filed in a court, the
court would have to proceed upon the basis that no reliance
can be placed upon that article for obtaining relief from the
E
court during the period of emergency. Question then arises as
to whether the rule that no one shall be deprived of his life or
personal liberty without the authority of law still survives during
the period of emergency despite the Presidential Order
suspending the right to move any court for the enforcement of
F the right contained in Article 21. The answer to this question is
linked with the answer to the question as to whether Article 21
is the sole repository of the right to life and personal liberty.
After giving the matter my earnest consideration, I am of the
opinion that Article 21 cannot be considered to be the sole
repository of the right to life and personal liberty. The right to
G life and personal liberty is the most precious right of human
beings in civilised societies governed by the rule of law. Many
modern Constitutions incorporate certain fundamental rights,
including the one relating to personal freedom. According to
Blackstone, the absolute rights of Englishmen were the rights
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 221
[A. K. SIKRI, J.]

of personal security, personal liberty and private property. The A

American Declaration of Independence (1776) states that all
men are created equal, and among their inalienable rights are
life, liberty, and the pursuit of happiness. The Second
Amendment to the US Constitution refers inter alia to security
of person, while the Fifth Amendment prohibits inter alia
B
deprivation of life and liberty without due process, of law. The
different Declarations of Human Rights and fundamental
freedoms have all laid stress upon the sanctity of life and liberty.
They have also given expression in varying words to the
principle that no one shall be derived of his life or liberty without
the authority of law. The International Commission of Jurists, C
which is affiliated to UNESCO, has been attempting with,
considerable success to give material content to “the rule of
law”, an expression used in the Universal Declaration of Human
Rights. One of its most notable achievements was the
Declaration of Delhi, 1959. This resulted from a Congress
D
held in New Delhi attended by jurists from more than 50
countries, and was based on a questionnaire circulated to 75,000
lawyers. “Respect for the supreme value of human personality”
was stated to be the basis of all law (see p. 21 of the
Constitutional and Administrative Law by O. Hood Phillips,
3rd Edn.). E
xx xx xx
531. I am unable to subscribe to the view that when right to
enforce the right under Article 21 is suspended, the result would
be that there would be no remedy against deprivation of a
person’s life or liberty by the State even though such deprivation F
is without the authority of law or even in flagrant violation of
the provisions of law. The right not to be deprived of one’s life
or liberty without the authority of law was not the creation of
the Constitution. Such right existed before the Constitution came
into force. The fact that the Framers of the Constitution made G
an aspect of such right a part of the fundamental rights did not
have the effect of exterminating the independent identity of
such right and of making Article 21 to be the sole repository of
that right. Its real effect was to ensure that a law under which
a person can be deprived of his life or personal liberty should
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222 SUPREME COURT REPORTS [2018] 8 S.C.R.

A prescribe a procedure for such deprivation or, according to the

dictum laid down by Mukherjea, J. in Gopalan case [A.K.
Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR
88] , such law should be a valid law not violative of fundamental
rights guaranteed by Part III of the Constitution. Recognition
as fundamental right of one aspect of the pre-constitutional
B
right cannot have the effect of making things less favourable
so far as the sanctity of life and personal liberty is concerned
compared to the position if an aspect of such right had not
been recognised as fundamental right because of the
vulnerability of fundamental rights accruing from Article 359.
C I am also unable to agree that in view of the Presidential Order
in the matter of sanctity of life and liberty, things would be
worse off compared to the state of law as it existed before the
coming into force of the Constitution.”
(emphasis in original)
D S. K. Kaul, J.:
574. I have had the benefit of reading the exhaustive and erudite
opinions of Rohinton F. Nariman and Dr D.Y. Chandrachud, JJ.
The conclusion is the same, answering the reference that privacy
is not just a common law right, but a fundamental right falling in
E Part III of the Constitution of India. I agree with this conclusion
as privacy is a primal, natural right which is inherent to an individual.
However, I am tempted to set out my perspective on the issue of
privacy as a right, which to my mind, is an important core of any
individual existence.
F xx xx xx
620. I had earlier adverted to an aspect of privacy — the right to
control dissemination of personal information. The boundaries that
people establish from others in society are not only physical but
also informational. There are different kinds of boundaries in
G respect to different relations. Privacy assists in preventing
awkward social situations and reducing social frictions. Most of
the information about individuals can fall under the phrase “none
of your business”. On information being shared voluntarily, the
same may be said to be in confidence and any breach of
confidentiality is a breach of the trust. This is more so in the
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 223
[A. K. SIKRI, J.]

professional relationships such as with doctors and lawyers which A

requires an element of candour in disclosure of information. An
individual has the right to control one’s life while submitting personal
data for various facilities and services. It is but essential that the
individual knows as to what the data is being used for with the
ability to correct and amend it. The hallmark of freedom in a
B
democracy is having the autonomy and control over our lives which
becomes impossible, if important decisions are made in secret
without our awareness or participation. [ Daniel Solove, “10
Reasons Why Privacy Matters” published on 20-1-2014 <https://
www.teachprivacy.com/10-reasons-privacy-matters/>.]
xx xx xx C

625. Every individual should have a right to be able to exercise

control over his/her own life and image as portrayed to the world
and to control commercial use of his/her identity. This also means
that an individual may be permitted to prevent others from using
his image, name and other aspects of his/her personal life and D
identity for commercial purposes without his/her consent. [ The
Second Circuit’s decision in Haelan Laboratories Inc. v. Topps
Chewing Gum Inc., 202 F 2d 866 (2d Cir 1953) penned by Jerome
Frank, J. defined the right to publicity as “the right to grant the
exclusive privilege of publishing his picture”.]” E
xx xx xx
646. If the individual permits someone to enter the house it does
not mean that others can enter the house. The only check and
balance is that it should not harm the other individual or affect his
or her rights. This applies both to the physical form and to F
technology. In an era where there are wide, varied, social and
cultural norms and more so in a country like ours which prides
itself on its diversity, privacy is one of the most important rights to
be protected both against State and non-State actors and be
recognised as a fundamental right. How it thereafter works out in G
its inter-play with other fundamental rights and when such
restrictions would become necessary would depend on the factual
matrix of each case. That it may give rise to more litigation can
hardly be the reason not to recognise this important, natural,
primordial right as a fundamental right.”
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224 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) The sanctity of privacy lies in its functional relationship

with dignity: Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human personality from
unwanted intrusions. While the legitimate expectation of privacy may
vary from intimate zone to the private zone and from the private to the
public arena, it is important to underscore that privacy is not lost or
B
surrendered merely because the individual is in a public place. Further,
privacy is a postulate of dignity itself. Also, privacy concerns arise when
the State seeks to intrude into the body and the mind of the citizen. This
aspect is discussed in the following manner:
Dr. D.Y. Chandrachud, J. :
C 127. The submission that recognising the right to privacy is an
exercise which would require a constitutional amendment and
cannot be a matter of judicial interpretation is not an acceptable
doctrinal position. The argument assumes that the right to privacy
is independent of the liberties guaranteed by Part III of the
D Constitution. There lies the error. The right to privacy is an element
of human dignity. The sanctity of privacy lies in its functional
relationship with dignity. Privacy ensures that a human being can
lead a life of dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to make
E essential choices which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a human
being to fulfill the liberties and freedoms which are the cornerstone
of the Constitution. To recognise the value of privacy as a
constitutional entitlement and interest is not to fashion a new
F fundamental right by a process of amendment through judicial
fiat. Neither are the Judges nor is the process of judicial review
entrusted with the constitutional responsibility to amend the
Constitution. But judicial review certainly has the task before it of
determining the nature and extent of the freedoms available to
each person under the fabric of those constitutional guarantees
G which are protected. Courts have traditionally discharged that
function and in the context of Article 21 itself, as we have already
noted, a panoply of protections governing different facets of a
dignified existence has been held to fall within the protection of
Article 21.
H xx xx xx
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 225
[A. K. SIKRI, J.]

297. What, then, does privacy postulate? Privacy postulates the A

reservation of a private space for the individual, described as the
right to be let alone. The concept is founded on the autonomy of
the individual. The ability of an individual to make choices lies at
the core of the human personality. The notion of privacy enables
the individual to assert and control the human element which is
B
inseparable from the personality of the individual. The inviolable
nature of the human personality is manifested in the ability to
make decisions on matters intimate to human life. The autonomy
of the individual is associated over matters which can be kept
private. These are concerns over which there is a legitimate
expectation of privacy. The body and the mind are inseparable C
elements of the human personality. The integrity of the body and
the sanctity of the mind can exist on the foundation that each
individual possesses an inalienable ability and right to preserve a
private space in which the human personality can develop. Without
the ability to make choices, the inviolability of the personality would
D
be in doubt. Recognising a zone of privacy is but an
acknowledgment that each individual must be entitled to chart
and pursue the course of development of personality. Hence
privacy is a postulate of human dignity itself. Thoughts and
behavioural patterns which are intimate to an individual are entitled
to a zone of privacy where one is free of social expectations. In E
that zone of privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals to
preserve their beliefs, thoughts, expressions, ideas, ideologies,
preferences and choices against societal demands of homogeneity.
F
Privacy is an intrinsic recognition of heterogeneity, of the right of
the individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects the
individual from the searching glare of publicity in matters which
are personal to his or her life. Privacy attaches to the person and
not to the place where it is associated. Privacy constitutes the G
foundation of all liberty because it is in privacy that the individual
can decide how liberty is best exercised. Individual dignity and
privacy are inextricably linked in a pattern woven out of a thread
of diversity into the fabric of a plural culture.
xx xx xx H
226 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 322. Privacy is the constitutional core of human dignity. Privacy

has both a normative and descriptive function. At a normative
level privacy subserves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a descriptive
level, privacy postulates a bundle of entitlements and interests
which lie at the foundation of ordered liberty.
B
323. Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and recognises
the ability of the individual to control vital aspects of his or her
C
life. Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises the plurality
and diversity of our culture. While the legitimate expectation of
privacy may vary from the intimate zone to the private zone and
from the private to the public arenas, it is important to underscore
D that privacy is not lost or surrendered merely because the individual
is in a public place. Privacy attaches to the person since it is an
essential facet of the dignity of the human being.
S.A. Bobde, J. :

E 407. Undoubtedly, privacy exists, as the foregoing demonstrates,

as a verifiable fact in all civilised societies. But privacy does not
stop at being merely a descriptive claim. It also embodies a
normative one. The normative case for privacy is intuitively simple.
Nature has clothed man, amongst other things, with dignity and
liberty so that he may be free to do what he will consistent with
F the freedom of another and to develop his faculties to the fullest
measure necessary to live in happiness and peace. The
Constitution, through its Part III, enumerates many of these
freedoms and their corresponding rights as fundamental rights.
Privacy is an essential condition for the exercise of most of these
G freedoms. Ex facie, every right which is integral to the
constitutional rights to dignity, life, personal liberty and freedom,
as indeed the right to privacy is, must itself be regarded as a
fundamental right.

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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 227
[A. K. SIKRI, J.]

408. Though he did not use the name of “privacy”, it is clear that A
it is what J.S. Mill took to be indispensable to the existence of the
general reservoir of liberty that democracies are expected to
reserve to their citizens. In the introduction to his seminal On
Liberty (1859), he characterised freedom in the following way:
“This, then, is the appropriate region of human liberty. It B
comprises, first, the inward domain of consciousness;
demanding liberty of conscience, in the most
comprehensive sense; liberty of thought and feeling;
absolute freedom of opinion and sentiment on all subjects,
practical or speculative, scientific, moral, or theological.
C
The liberty of expressing and publishing opinions may seem to
fall under a different principle, since it belongs to that part of
the conduct of an individual which concerns other people; but,
being almost of as much importance as the liberty of thought
itself, and resting in great part on the same reasons, is practically
inseparable from it. Secondly, the principle requires liberty D
of tastes and pursuits; of framing the plan of our life to
suit our own character; of doing as we like, subject to such
consequences as may follow: without impediment from our
fellow creatures, so long as what we do does not harm them,
even though they should think our conduct foolish, perverse, or
E
wrong. Thirdly, from this liberty of each individual, follows the
liberty, within the same limits, of combination among individuals;
freedom to unite, for any purpose not involving harm to others:
the persons combining being supposed to be of full age, and
not forced or deceived.
No society in which these liberties are not, on the whole, F
respected, is free, whatever may be its form of Government;
and none is completely free in which they do not exist
absolute and unqualified. The only freedom which deserves
the name, is that of pursuing our own good in our own
way, so long as we do not attempt to deprive others of G
theirs, or impede their efforts to obtain it. Each is the proper
guardian of his own health, whether bodily, or mental and
spiritual. Mankind are greater gainers by suffering each other
to live as seems good to themselves, than by compelling each
to live as seems good to the rest.
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228 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Though this doctrine is anything but new, and, to some persons,

may have the air of a truism, there is no doctrine which stands
more directly opposed to the general tendency of existing opinion
and practice. Society has expended fully as much effort in the
attempt (according to its lights) to compel people to conform
to its notions of personal, as of social excellence.” [John Stuart
B
Mill, On Liberty and Other Essays (Stefan Collini Edition,
1989) (1859)]
(emphasis supplied)
409. The first and natural home for a right to privacy is in Article
C 21 at the very heart of “personal liberty” and life itself. Liberty
and privacy are integrally connected in a way that privacy is often
the basic condition necessary for exercise of the right of personal
liberty. There are innumerable activities which are virtually
incapable of being performed at all and in many cases with dignity
unless an individual is left alone or is otherwise empowered to
D ensure his or her privacy. Birth and death are events when privacy
is required for ensuring dignity amongst all civilised people. Privacy
is thus one of those rights “instrumentally required if one is to
enjoy” [ Laurence H. Tribe and Michael C. Dorf, “Levels of
Generality in the Definition of Rights”, 57 U CHI L REV 1057 (1990)
E at p. 1068.] rights specified and enumerated in the constitutional
text.
410. This Court has endorsed the view that “life” must mean
“something more than mere animal existence” [Munn v. Illinois,
1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877) (Per
F Field, J.) as cited in Kharak Singh, (1964) 1 SCR 332 at pp. 347-
48] on a number of occasions, beginning with the Constitution
Bench in Sunil Batra (1) v. Delhi Admn. [Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] Sunil Batra
[Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC
(Cri) 155] connected this view of Article 21 to the constitutional
G value of dignity. In numerous cases, including Francis Coralie
Mullin v. UT of Delhi [Francis Coralie Mullin v. UT of Delhi,
(1981) 1 SCC 608 : 1981 SCC (Cri) 212] , this Court has viewed
liberty as closely linked to dignity. Their relationship to the effect
of taking into the protection of “life” the protection of “faculties
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 229
[A. K. SIKRI, J.]

of thinking and feeling”, and of temporary and permanent A

impairments to those faculties. In Francis Coralie
Mullin[Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC
608 : 1981 SCC (Cri) 212] , Bhagwati, J. opined as follows: (SCC
p. 618, para 7)
“7. Now obviously, the right to life enshrined in Article 21 cannot B
be restricted to mere animal existence. It means something
much more than just physical survival. In Kharak Singh v.
State of U.P. [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332], Subba Rao, J.
quoted with approval the following passage from the judgment
of Field, J. in Munn v. Illinois [Munn v. Illinois, 1876 SCC C
OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877)] to emphasise
the quality of life covered by Article 21: (Kharak Singh case
[Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2
Cri LJ 329 : (1964) 1 SCR 332] , AIR p. 1301, para 15)
15. … “By the term “life” as here used something more is D
meant than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which
life is enjoyed. The provision equally prohibits the mutilation of
the body or amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body through E
which the soul communicates with the outer world.” ’
and this passage was again accepted as laying down the correct
law by the Constitution Bench of this Court in the first Sunil
Batra case [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 :
1979 SCC (Cri) 155]. Every limb or faculty through which F
life is enjoyed is thus protected by Article 21 and a fortiori,
this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article 21 may be total
or partial, neither any limb or faculty can be totally destroyed
nor can it be partially damaged. Moreover it is every kind of
deprivation that is hit by Article 21, whether such deprivation G
be permanent or temporary and, furthermore, deprivation is
not an act which is complete once and for all: it is a continuing
act and so long as it lasts, it must be in accordance with
procedure established by law. It is therefore clear that any
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230 SUPREME COURT REPORTS [2018] 8 S.C.R.

A act which damages or injures or interferes with the use of,

any limb or faculty of a person, either permanently or even
temporarily, would be within the inhibition of Article 21.”
(emphasis supplied)
Privacy is, therefore, necessary in both its mental and physical
B aspects as an enabler of guaranteed freedoms.
411. It is difficult to see how dignity—whose constitutional
significance is acknowledged both by the Preamble and by this
Court in its exposition of Article 21, among other rights—can be
assured to the individual without privacy. Both dignity and privacy
C are intimately intertwined and are natural conditions for the birth
and death of individuals, and for many significant events in life
between these events. Necessarily, then, the right to privacy is an
integral part of both “life” and “personal liberty” under Article 21,
and is intended to enable the rights bearer to develop her potential
D to the fullest extent made possible only in consonance with the
constitutional values expressed in the Preamble as well as across
Part III.
R. F. Nariman, J:
525. But most important of all is the cardinal value of fraternity
E which assures the dignity of the individual. [ In 1834, Jacques-
Charles Dupont de l’Eure associated the three terms liberty,
equality and fraternity together in the Revue Républicaine, which
he edited, as follows:”Any man aspires to liberty, to equality, but
he cannot achieve it without the assistance of other men, without
F fraternity.”Many of our decisions recognise human dignity as being
an essential part of the fundamental rights chapter. For example,
see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at
para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC
608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of
India, (1984) 3 SCC 161 at para 10, Maharashtra University of
G Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC
786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702
at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016)
7 SCC 761 at para 37.] The dignity of the individual encompasses
the right of the individual to develop to the full extent of his potential.
And this development can only be if an individual has autonomy
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 231
[A. K. SIKRI, J.]

over fundamental personal choices and control over dissemination A

of personal information which may be infringed through an
unauthorised use of such information. It is clear that Article 21,
more than any of the other articles in the fundamental rights chapter,
reflects each of these constitutional values in full, and is to be
read in consonance with these values and with the international
B
covenants that we have referred to. In the ultimate analysis, the
fundamental right to privacy, which has so many developing facets,
can only be developed on a case-to-case basis. Depending upon
the particular facet that is relied upon, either Article 21 by itself or
in conjunction with other fundamental rights would get attracted.
S. K. Kaul, J. : C

618. Rohinton F. Nariman, and Dr D.Y. Chandrachud, JJ., have

emphasised the importance of the protection of privacy to ensure
protection of liberty and dignity. I agree with them and seek to
refer to some legal observations in this regard:
D
618.1. In Robertson and Nicol on Media Law [ Geoffrey
Robertson, QC and Andrew Nicol, QC, Media Law, 5th Edn., p.
265.] it was observed:
“Individuals have a psychological need to preserve an intrusion-
free zone for their personality and family and suffer anguish E
and stress when that zone is violated. Democratic societies
must protect privacy as part of their facilitation of individual
freedom, and offer some legal support for the individual choice
as to what aspects of intimate personal life the citizen is prepared
to share with others. This freedom in other words springs from
the same source as freedom of expression: a liberty that F
enhances individual life in a democratic community.”
618.2. Lord Nicholls and Lord Hoffmann in their opinion in Naomi
Campbell case[Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004)
2 WLR 1232 : (2004) UKHL 22 (HL)] recognised the importance
of the protection of privacy. Lord Hoffman opined as under: (AC G
p. 472 H & 473 A-D, paras 50-51)
“50. What human rights law has done is to identify private
information as something worth protecting as an aspect of
human autonomy and dignity. And this recognition has raised
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232 SUPREME COURT REPORTS [2018] 8 S.C.R.

A inescapably the question of why it should be worth protecting

against the state but not against a private person. There may
of course be justifications for the publication of private
information by private persons which would not be available to
the state — I have particularly in mind the position of the media,
to which I shall return in a moment — but I can see no logical
B
ground for saying that a person should have less protection
against a private individual than he would have against the
state for the publication of personal information for which there
is no justification. Nor, it appears, have any of the other Judges
who have considered the matter.
C 51. The result of these developments has been a shift in the
centre of gravity of the action for breach of confidence when
it is used as a remedy for the unjustified publication of personal
information. … Instead of the cause of action being based
upon the duty of good faith applicable to confidential personal
D information and trade secrets alike, it focuses upon the
protection of human autonomy and dignity — the right to control
the dissemination of information about one’s private life and
the right to the esteem and respect of other people.”
618.3. Lord Nicholls opined as under: (Naomi Campbell case
E [Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2 WLR 1232
: (2004) UKHL 22 (HL)] , AC p. 464 D-F, para 12)
“12. The present case concerns one aspect of invasion of
privacy: wrongful disclosure of private information. The case
involves the familiar competition between freedom of
F expression and respect for an individual’s privacy. Both are
vitally important rights. Neither has precedence over the other.
The importance of freedom of expression has been stressed
often and eloquently, the importance of privacy less so. But it,
too, lies at the heart of liberty in a modern state. A proper
degree of privacy is essential for the well-being and
G development of an individual. And restraints imposed on
government to pry into the lives of the citizen go to the essence
of a democratic state: see La Forest J. in R. v. Dyment [R. v.
Dyment, 1988 SCC OnLine Can SC 86 : (1988) 2 SCR 417] ,
SCC OnLine Can SC para 17 : SCR p. 426.”
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 233
[A. K. SIKRI, J.]

619. Privacy is also the key to freedom of thought. A person has A

a right to think. The thoughts are sometimes translated into speech
but confined to the person to whom it is made. For example, one
may want to criticise someone but not share the criticism with the
world.
Chelameswar, J.: B
372. History abounds with examples of attempts by Governments
to shape the minds of subjects. In other words, conditioning the
thought process by prescribing what to read or not to read; what
forms of art alone are required to be appreciated leading to the
conditioning of beliefs; interfering with the choice of people C
regarding the kind of literature, music or art which an individual
would prefer to enjoy. [Stanleyv. Georgia, 1969 SCC OnLine
US SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969)”3. … that the
mere private possession of obscene matter cannot constitutionally
be made a crime.***9. … State has no business telling a man,
sitting alone in his own house, what books he may read or what D
films he may watch. Our whole constitutional heritage rebels at
the thought of giving Government the power to control men’s
minds.” (SCC OnLine US SC paras 3 & 9)] Such conditioning is
sought to be achieved by screening the source of information or
prescribing penalties for making choices which Governments do E
not approve. [Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC
615] Insofar as religious beliefs are concerned, a good deal of the
misery our species suffer owes its existence to and centres around
competing claims of the right to propagate religion. Constitution
of India protects the liberty of all subjects guaranteeing [“25.
Freedom of conscience and free profession, practice and F
propagation of religion.—(1) Subject to public order, morality
and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.(2) Nothing in this article
shall affect the operation of any existing law or prevent the State G
from making any law—(a) regulating or restricting any economic,
financial, political or other secular activity which may be associated
with religious practice;(b) providing for social welfare and reform
or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.Explanation I.—
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234 SUPREME COURT REPORTS [2018] 8 S.C.R.

A The wearing and carrying of kirpans shall be deemed to be included

in the profession of the Sikh religion. Explanation II.—In sub-
clause (b) of clause (2), the reference to Hindus shall be construed
as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.”] the freedom of conscience and
B
right to freely profess, practice and propagate religion. While the
right to freely “profess, practice and propagate religion” may be a
facet of free speech guaranteed under Article 19(1)(a), the
freedom of the belief or faith in any religion is a matter of
conscience falling within the zone of purely private thought process
C and is an aspect of liberty. There are areas other than religious
beliefs which form part of the individual’s freedom of conscience
such as political belief, etc. which form part of the liberty under
Article 21.
373. Concerns of privacy arise when the State seeks to intrude
D into the body of subjects. [Skinner v. Oklahoma, 1942 SCC
OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)”20.
There are limits to the extent to which a legislatively represented
majority may conduct biological experiments at the expense of
the dignity and personality and natural powers of a minority—
even those who have been guilty of what the majority defines as
E crimes.” (SCC OnLine US SC para 20)—Jackson, J.] Corporeal
punishments were not unknown to India, their abolition is of a
recent vintage. Forced feeding of certain persons by the State
raises concerns of privacy. An individual’s rights to refuse life
prolonging medical treatment or terminate his life is another freedom
F which falls within the zone of the right to privacy. I am conscious
of the fact that the issue is pending before this Court. But in various
other jurisdictions, there is a huge debate on those issues though it
is still a grey area. [ For the legal debate in this area in US, See
Chapter 15.11 of American Constitutional Law by Laurence H.
Tribe, 2nd Edn.] A woman’s freedom of choice whether to bear a
G child or abort her pregnancy are areas which fall in the realm of
privacy. Similarly, the freedom to choose either to work or not
and the freedom to choose the nature of the work are areas of
private decision-making process. The right to travel freely within
the country or go abroad is an area falling within the right to privacy.
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 235
[A. K. SIKRI, J.]

The text of our Constitution recognised the freedom to travel A

throughout the country under Article 19(1)(d). This Court has
already recognised that such a right takes within its sweep the
right to travel abroad. [Maneka Gandhi v. Union of India, (1978)
1 SCC 248] A person’s freedom to choose the place of his
residence once again is a part of his right to privacy [Williams v.
B
Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270
(1900)—”8. Undoubtedly the right of locomotion, the right to
remove from one place to another according to inclination, is an
attribute of personal liberty….” (SCC OnLine US SC para 8)]
recognised by the Constitution of India under Article 19(1)(e)
though the predominant purpose of enumerating the C
abovementioned two freedoms in Article 19(1) is to disable both
the federal and State Governments from creating barriers which
are incompatible with the federal nature of our country and its
Constitution. The choice of appearance and apparel are also
aspects of the right to privacy. The freedom of certain groups of
D
subjects to determine their appearance and apparel (such as
keeping long hair and wearing a turban) are protected not as a
part of the right to privacy but as a part of their religious belief.
Such a freedom need not necessarily be based on religious beliefs
falling under Article 25. Informational traces are also an area
which is the subject-matter of huge debate in various jurisdictions E
falling within the realm of the right to privacy, such data is as
personal as that of the choice of appearance and apparel. Telephone
tappings and internet hacking by State, of personal data is another
area which falls within the realm of privacy. The instant reference
arises out of such an attempt by the Union of India to collect
F
biometric data regarding all the residents of this country. The
abovementioned are some of the areas where some interest of
privacy exists. The examples given above indicate to some extent
the nature and scope of the right to privacy.
374. I do not think that anybody in this country would like to have
the officers of the State intruding into their homes or private G
property at will or soldiers quartered in their houses without their
consent. I do not think that anybody would like to be told by the
State as to what they should eat or how they should dress or
whom they should be associated with either in their personal, social
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236 SUPREME COURT REPORTS [2018] 8 S.C.R.

A or political life. Freedom of social and political association is

guaranteed to citizens under Article 19(1)(c). Personal association
is still a doubtful area. [The High Court of A.P. held that Article
19(1)(c) would take within its sweep the matrimonial association
in T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP
90 : AIR 1983 AP 356. However, this case was later overruled by
B
this Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4
SCC 90 : AIR 1984 SC 1562.] The decision-making process
regarding the freedom of association, freedoms of travel and
residence are purely private and fall within the realm of the right
to privacy. It is one of the most intimate decisions.
C 375. All liberal democracies believe that the State should not have
unqualified authority to intrude into certain aspects of human life
and that the authority should be limited by parameters
constitutionally fixed. Fundamental rights are the only constitutional
firewall to prevent State’s interference with those core freedoms
D constituting liberty of a human being. The right to privacy is
certainly one of the core freedoms which is to be defended. It is
part of liberty within the meaning of that expression in Article 21.
376. I am in complete agreement with the conclusions recorded
by my learned Brothers in this regard.”
E (iii) Privacy is intrinsic to freedom, liberty and dignity: The
right to privacy is inherent to the liberties guaranteed by Part-III of the
Constitution and privacy is an element of human dignity. The fundamental
right to privacy derives from Part-III of the Constitution and recognition
of this right does not require a constitutional amendment. Privacy is
F more than merely a derivative constitutional right. It is the necessary
basis of rights guaranteed in the text of the Constitution. Discussion in
this behalf is captured in the following passages:
Dr. D.Y. Chandrachud, J. :
127. The submission that recognising the right to privacy is an
G exercise which would require a constitutional amendment and
cannot be a matter of judicial interpretation is not an acceptable
doctrinal position. The argument assumes that the right to privacy
is independent of the liberties guaranteed by Part III of the
Constitution. There lies the error. The right to privacy is an element
of human dignity. The sanctity of privacy lies in its functional
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 237
[A. K. SIKRI, J.]

relationship with dignity. Privacy ensures that a human being can A

lead a life of dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to make
essential choices which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a human
B
being to fulfill the liberties and freedoms which are the cornerstone
of the Constitution. To recognise the value of privacy as a
constitutional entitlement and interest is not to fashion a new
fundamental right by a process of amendment through judicial
fiat. Neither are the Judges nor is the process of judicial review
entrusted with the constitutional responsibility to amend the C
Constitution. But judicial review certainly has the task before it of
determining the nature and extent of the freedoms available to
each person under the fabric of those constitutional guarantees
which are protected. Courts have traditionally discharged that
function and in the context of Article 21 itself, as we have already
D
noted, a panoply of protections governing different facets of a
dignified existence has been held to fall within the protection of
Article 21.
S. A. Bobde, J. :
416. There is nothing unusual in the judicial enumeration of one E
right on the basis of another under the Constitution. In the case of
Article 21’s guarantee of “personal liberty”, this practice is only
natural if Salmond’s formulation of liberty as “incipient rights” [
P.J. Fitzgerald, Salmond on Jurisprudence at p. 228.] is correct.
By the process of enumeration, constitutional courts merely give
a name and specify the core of guarantees already present in the F
residue of constitutional liberty. Over time, the Supreme Court
has been able to imply by its interpretative process that several
fundamental rights including the right to privacy emerge out of
expressly stated fundamental rights. In Unni Krishnan, J.P. v.
State of A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 1 G
SCC 645] , a Constitution Bench of this Court held that “several
unenumerated rights fall within Article 21 since personal liberty is
of widest amplitude” [Unni Krishnan, J.P. v. State of A.P., (1993)
1 SCC 645 at p. 669, para 29] on the way to affirming the existence
of a right to education. It went on to supply the following indicative
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238 SUPREME COURT REPORTS [2018] 8 S.C.R.

A list of such rights, which included the right to privacy: (SCC pp.
669-70, para 30)
“30. The following rights are held to be covered under Article
21:
1. The right to go abroad. Satwant Singh v. D. Ramarathnam
B [Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR
525 : AIR 1967 SC 1836] .
2. The right to privacy. Gobind v. State of M.P. [Gobind v.
State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] In this
case reliance was placed on the American decision in Griswold
C v. Connecticut [Griswold v. Connecticut, 1965 SCC OnLine
US SC 124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479
(1965)] , US at p. 510.
3. The right against solitary confinement. Sunil Batra (1) v.
Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
D : 1979 SCC (Cri) 155] , SCC at p. 545.
4. The right against bar fetters. Charles Sobhraj v. Supt.,
Central Jail [Charles Sobraj v. Supt., Central Jail, (1978)
4 SCC 104 : 1978 SCC (Cri) 542].
5. The right to legal aid. M.H. Hoskot v. State of
E
Maharashtra [M.H. Hoskot v. State of Maharashtra, (1978)
3 SCC 544 : 1978 SCC (Cri) 468].
6. The right to speedy trial. Hussainara Khatoon (1) v. State
of Bihar[Hussainara Khatoon (1) v. State of Bihar, (1980)
1 SCC 81 : 1980 SCC (Cri) 23] .
F
7. The right against handcuffing. Prem Shankar v. Delhi
Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC
526 : 1980 SCC (Cri) 815]
8. The right against delayed execution. T.V. Vatheeswaran v.
G State of T.N. [T.V. Vatheeswaran v. State of T.N., (1983) 2
SCC 68 : 1983 SCC (Cri) 342]
9. The right against custodial violence. Sheela Barse v. State
of Maharashtra [Sheela Barse v. State of Maharashtra,
(1983) 2 SCC 96 : 1983 SCC (Cri) 353].
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 239
[A. K. SIKRI, J.]

10. The right against public hanging. Attorney General of A

India v. Lachma Devi [Attorney General of India v. Lachma
Devi, 1989 Supp (1) SCC 264 : 1989 SCC (Cri) 413].
11. Doctor’s assistance. Paramananda Katara v. Union of
India [Parmanand Katara v. Union of India, (1989) 4 SCC
286 : 1989 SCC (Cri) 721]. B
12. Shelter. Santistar Builders v. Narayan Khimalal Totame
[Shantistar Builders v. Narayan Khimalal Totame,
(1990) 1 SCC 520] .”
In the case of privacy, the case for judicial enumeration is
especially strong. It is no doubt a fair implication from Article 21, C
but also more. Privacy is a right or condition, “logically
presupposed” [ Laurence H. Tribe And Michael C. Dorf, “Levels
Of Generality in the Definition of Rights”, 57 U CHI L REV 1057
(1990) at p. 1068.] by rights expressly recorded in the constitutional
text, if they are to make sense. As a result, privacy is more than D
merely a derivative constitutional right. It is the necessary and
unavoidable logical entailment of rights guaranteed in the text of
the Constitution.
R. F. Nariman, J:
482. Shri Sundaram has argued that rights have to be traced directly E
to those expressly stated in the fundamental rights chapter of the
Constitution for such rights to receive protection, and privacy is
not one of them. It will be noticed that the dignity of the individual
is a cardinal value, which is expressed in the Preamble to the
Constitution. Such dignity is not expressly stated as a right in the F
fundamental rights chapter, but has been read into the right to life
and personal liberty. The right to live with dignity is expressly
read into Article 21 by the judgment in Jolly George Varghesev.
Bank of Cochin [Jolly George Varghese v. Bank of Cochin,
(1980) 2 SCC 360] , at para 10. Similarly, the right against bar
fetters and handcuffing being integral to an individual’s dignity G
was read into Article 21 by the judgment in Sunil Batra v. Delhi
Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979
SCC (Cri) 155] , at paras 192, 197-B, 234 and 241 and Prem
Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v.
Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815] , at paras
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240 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 21 and 22. It is too late in the day to canvas that a fundamental

right must be traceable to express language in Part III of the
Constitution. As will be pointed out later in this judgment, a
Constitution has to be read in such a way that words deliver up
principles that are to be followed and if this is kept in mind, it is
clear that the concept of privacy is contained not merely in personal
B
liberty, but also in the dignity of the individual.”
(iv) Privacy has both positive and negative content: The
negative content restrains the State from committing an intrusion upon
the life and personal liberty of a citizen. Its positive content imposes an
obligation on the State to take all necessary measures to protect the
C privacy of the individual.
Dr. D. Y. Chandrachud, J.:
326. Privacy has both positive and negative content. The negative
content restrains the State from committing an intrusion upon the
D life and personal liberty of a citizen. Its positive content imposes
an obligation on the State to take all necessary measures to protect
the privacy of the individual.”
(v) Informational Privacy is a facet of right to privacy: The
old adage that ‘knowledge is power’ has stark implications for the position
E of individual where data is ubiquitous, an all-encompassing presence.
Every transaction of an individual user leaves electronic tracks without
her knowledge. Individually these information silos may seem
inconsequential. In aggregation, information provides a picture of the
beings. The challenges which big data poses to privacy emanate from
both State and non-State entities. This proposition is described in the
F following manner:
Dr. D. Y. Chandrachud, J.:
300. Ours is an age of information. Information is knowledge.
The old adage that “knowledge is power” has stark implications
for the position of the individual where data is ubiquitous, an all-
G
encompassing presence. Technology has made life fundamentally
interconnected. The internet has become all-pervasive as
individuals spend more and more time online each day of their
lives. Individuals connect with others and use the internet as a
means of communication. The internet is used to carry on business
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 241
[A. K. SIKRI, J.]

and to buy goods and services. Individuals browse the web in A

search of information, to send e-mails, use instant messaging
services and to download movies. Online purchases have become
an efficient substitute for the daily visit to the neighbouring store.
Online banking has redefined relationships between bankers and
customers. Online trading has created a new platform for the
B
market in securities. Online music has refashioned the radio. Online
books have opened up a new universe for the bibliophile. The old-
fashioned travel agent has been rendered redundant by web portals
which provide everything from restaurants to rest houses, airline
tickets to art galleries, museum tickets to music shows. These are
but a few of the reasons people access the internet each day of C
their lives. Yet every transaction of an individual user and every
site that she visits, leaves electronic tracks generally without her
knowledge. These electronic tracks contain powerful means of
information which provide knowledge of the sort of person that
the user is and her interests [See Francois Nawrot, Katarzyna
D
Syska and Przemyslaw Switalski, “Horizontal Application of
Fundamental Rights — Right to Privacy on the Internet”, 9th
Annual European Constitutionalism Seminar (May 2010),
University of Warsaw, available at < http : // en.zpc.wpia.uw.edu.pl
/ w p - c o n t e n t / u p l o a d s / 2 0 1 0 / 0 4 /
9_Horizontal_Application_of_Fundamental_Rights.pdf>.]. E
Individually, these information silos may seem inconsequential. In
aggregation, they disclose the nature of the personality: food habits,
language, health, hobbies, sexual preferences, friendships, ways
of dress and political affiliation. In aggregation, information provides
a picture of the being: of things which matter and those that do
F
not, of things to be disclosed and those best hidden.
xx xx xx
304. Data mining processes together with knowledge discovery
can be combined to create facts about individuals. Metadata and
the internet of things have the ability to redefine human existence G
in ways which are yet fully to be perceived. This, as Christina
Moniodis states in her illuminating article, results in the creation
of new knowledge about individuals; something which even she
or he did not possess. This poses serious issues for the Court. In
an age of rapidly evolving technology it is impossible for a Judge
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242 SUPREME COURT REPORTS [2018] 8 S.C.R.

A to conceive of all the possible uses of information or its

consequences:
“… The creation of new knowledge complicates data privacy
law as it involves information the individual did not possess
and could not disclose, knowingly or otherwise. In addition, as
B our State becomes an “information State” through increasing
reliance on information—such that information is described as
the “lifeblood that sustains political, social, and business
decisions. It becomes impossible to conceptualize all of the
possible uses of information and resulting harms. Such a
situation poses a challenge for courts who are effectively asked
C to anticipate and remedy invisible, evolving harms.” [ Christina
P. Moniodis, “Moving from Nixon to NASA: Privacy’s Second
Strand — A Right to Informational Privacy”, Yale Journal of
Law and Technology (2012), Vol. 15 (1), at p. 154.]
The contemporary age has been aptly regarded as “an era of
D ubiquitous dataveillance, or the systematic monitoring of citizen’s
communications or actions through the use of information
technology” [Yvonne McDermott, “Conceptualizing the Right to
Data Protection in an Era of Big Data”, Big Data and Society
(2017), at p. 1.] . It is also an age of “big data” or the collection of
E data sets. These data sets are capable of being searched; they
have linkages with other data sets; and are marked by their
exhaustive scope and the permanency of collection. [Id, at pp. 1
and 4.] The challenges which big data poses to privacy interests
emanate from State and non-State entities. Users of wearable
devices and social media networks may not conceive of themselves
F as having volunteered data but their activities of use and
engagement result in the generation of vast amounts of data about
individual lifestyles, choices and preferences. Yvonne McDermott
speaks about the quantified self in eloquent terms:
“… The rise in the so-called ‘quantified self’, or the self-tracking
G of biological, environmental, physical, or behavioural information
through tracking devices, Internet-of-things devices, social network
data and other means (?Swan.2013) may result in information
being gathered not just about the individual user, but about people
around them as well. Thus, a solely consent-based model does
H not entirely ensure the protection of one’s data, especially when
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 243
[A. K. SIKRI, J.]

data collected for one purpose can be repurposed for another.” A

[Id, at p. 4.]
xx xx xx
328. Informational privacy is a facet of the right to privacy. The
dangers to privacy in an age of information can originate not only
from the State but from non-State actors as well. We commend B
to the Union Government the need to examine and put into place
a robust regime for data protection. The creation of such a regime
requires a careful and sensitive balance between individual interests
and legitimate concerns of the State. The legitimate aims of the
State would include for instance protecting national security, C
preventing and investigating crime, encouraging innovation and
the spread of knowledge, and preventing the dissipation of social
welfare benefits. These are matters of policy to be considered by
the Union Government while designing a carefully structured
regime for the protection of the data. Since the Union Government
has informed the Court that it has constituted a Committee chaired D
by Hon’ble Shri Justice B.N. Srikrishna, former Judge of this Court,
for that purpose, the matter shall be dealt with appropriately by
the Union Government having due regard to what has been set
out in this judgment.
S.K. Kaul, J.: E

585. The growth and development of technology has created new

instruments for the possible invasion of privacy by the State,
including through surveillance, profiling and data collection and
processing. Surveillance is not new, but technology has permitted
surveillance in ways that are unimaginable. Edward Snowden F
shocked the world with his disclosures about global surveillance.
States are utilising technology in the most imaginative ways
particularly in view of increasing global terrorist attacks and
heightened public safety concerns. One such technique being
adopted by the States is “profiling”. The European Union G
Regulation of 2016 [ Regulation No. (EU) 2016/679 of the
European Parliament and of the Council of 27-4-2016 on the
protection of natural persons with regard to the processing of
personal data and on the free movement of such data, and repealing
Directive No. 95/46/EC (General Data Protection Regulation).]
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244 SUPREME COURT REPORTS [2018] 8 S.C.R.

A on data privacy defines “profiling” as any form of automated

processing of personal data consisting of the use of personal data
to evaluate certain personal aspects relating to a natural person,
in particular to analyse or predict aspects concerning that natural
person’s performance at work, economic situation, health, personal
preferences, interests, reliability, behaviour, location or movements
B
[ Regulation No. (EU) 2016/679 of the European Parliament and
of the Council of 27-4-2016 on the protection of natural persons
with regard to the processing of personal data and on the free
movement of such data, and repealing Directive No. 95/46/EC
(General Data Protection Regulation).] . Such profiling can result
C in discrimination based on religion, ethnicity and caste. However,
“profiling” can also be used to further public interest and for the
benefit of national security.
586. The security environment, not only in our country, but
throughout the world makes the safety of persons and the State a
D matter to be balanced against this right to privacy.
587. The capacity of non-State actors to invade the home and
privacy has also been enhanced. Technological development has
facilitated journalism that is more intrusive than ever before.
588. Further, in this digital age, individuals are constantly generating
E valuable data which can be used by non-State actors to track
their moves, choices and preferences. Data is generated not just
by active sharing of information, but also passively, with every
click on the “world wide web”. We are stated to be creating an
equal amount of information every other day, as humanity created
F from the beginning of recorded history to the year 2003 — enabled
by the “world wide web”. [ Michael L. Rustad, SannaKulevska,
“Reconceptualizing the right to be forgotten to enable transatlantic
data flow”, (2015) 28 Harv JL & Tech 349.]
589. Recently, it was pointed out that “ “Uber”, the world’s largest
G taxi company, owns no vehicles. “Facebook”, the world’s most
popular media owner, creates no content. “Alibaba”, the most
valuable retailer, has no inventory. And “Airbnb”, the world’s
largest accommodation provider, owns no real estate. Something
interesting is happening.” [ Tom Goodwin “The Battle is for
Customer Interface”, <https://techcrunch.com/2015/03/03/in-the-
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 245
[A. K. SIKRI, J.]

age-of-disintermediation-the-battle-is-all-for-the-customer- A
interface/>.] “Uber” knows our whereabouts and the places we
frequent. “Facebook” at the least, knows who we are friends
with. “Alibaba” knows our shopping habits. “Airbnb” knows where
we are travelling to. Social network providers, search engines, e-
mail service providers, messaging applications are all further
B
examples of non-State actors that have extensive knowledge of
our movements, financial transactions, conversations — both
personal and professional, health, mental state, interest, travel
locations, fares and shopping habits. As we move towards
becoming a digital economy and increase our reliance on internet-
based services, we are creating deeper and deeper digital footprints C
— passively and actively.
590. These digital footprints and extensive data can be analysed
computationally to reveal patterns, trends, and associations,
especially relating to human behaviour and interactions and hence,
is valuable information. This is the age of “big data”. The D
advancement in technology has created not just new forms of
data, but also new methods of analysing the data and has led to
the discovery of new uses for data. The algorithms are more
effective and the computational power has magnified exponentially.
A large number of people would like to keep such search history
private, but it rarely remains private, and is collected, sold and E
analysed for purposes such as targeted advertising. Of course,
“big data” can also be used to further public interest. There may
be cases where collection and processing of big data is legitimate
and proportionate, despite being invasive of privacy otherwise.
591. Knowledge about a person gives a power over that person. F
The personal data collected is capable of effecting representations,
influencing decision-making processes and shaping behaviour. It
can be used as a tool to exercise control over us like the “big
brother” State exercised. This can have a stultifying effect on the
expression of dissent and difference of opinion, which no G
democracy can afford.
592. Thus, there is an unprecedented need for regulation regarding
the extent to which such information can be stored, processed
and used by non-State actors. There is also a need for protection
of such information from the State. Our Government was H
246 SUPREME COURT REPORTS [2018] 8 S.C.R.

A successful in compelling Blackberry to give to it the ability to

intercept data sent over Blackberry devices. While such
interception may be desirable and permissible in order to ensure
national security, it cannot be unregulated. [ Kadhim Shubber,
“Blackberry gives Indian Government ability to intercept
messages” published by Wired on 11-7-2013 <http://
B
www.wired.co.uk/article/blackberry-india>.]
593. The concept of “invasion of privacy” is not the early
conventional thought process of “poking ones nose in another
person’s affairs”. It is not so simplistic. In today’s world, privacy
is a limit on the Government’s power as well as the power of
C private sector entities. [ Daniel Solove, “10 Reasons Why Privacy
Matters” published on 20-1-2014 <https://www.teachprivacy.com/
10-reasons-privacy-matters/>.]
594. George Orwell created a fictional State in Nineteen Eighty-
Four. Today, it can be a reality. The technological development
D today can enable not only the State, but also big corporations and
private entities to be the “big brother”.
xx xx xx
629. The right of an individual to exercise control over his personal
E data and to be able to control his/her own life would also encompass
his right to control his existence on the internet. Needless to say
that this would not be an absolute right. The existence of such a
right does not imply that a criminal can obliterate his past, but that
there are variant degrees of mistakes, small and big, and it cannot
be said that a person should be profiled to the nth extent for all
F and sundry to know.
630. A high school teacher was fired after posting on her Facebook
page that she was “so not looking forward to another [school]
year” since the school district’s residents were “arrogant and
snobby”. A flight attendant was fired for posting suggestive photos
G of herself in the company’s uniform. [ Patricia Sánchez Abril,
“Blurred Boundaries: Social Media Privacy and the Twenty-First-
Century Employee”, 49 Am Bus LJ 63 at p. 69 (2012).] In the
pre-digital era, such incidents would have never occurred. People
could then make mistakes and embarrass themselves, with the
comfort that the information will be typically forgotten over time.
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 247
[A. K. SIKRI, J.]

631. The impact of the digital age results in information on the A

internet being permanent. Humans forget, but the internet does
not forget and does not let humans forget. Any endeavour to
remove information from the internet does not result in its absolute
obliteration. The footprints remain. It is thus, said that in the digital
world preservation is the norm and forgetting a struggle [ Ravi
B
Antani, “THE RESISTANCE OF MEMORY : COULD THE EUROPEAN UNION’S
RIGHT TO BE FORGOTTEN EXIST IN THE UNITED STATES ?”, 30 Berkeley
Tech LJ 1173 (2015).] .
632. The technology results almost in a sort of a permanent storage
in some way or the other making it difficult to begin life again
giving up past mistakes. People are not static, they change and C
grow through their lives. They evolve. They make mistakes. But
they are entitled to re-invent themselves and reform and correct
their mistakes. It is privacy which nurtures this ability and removes
the shackles of unadvisable things which may have been done in
the past. D
633. Children around the world create perpetual digital footprints
on social network websites on a 24/7 basis as they learn their
“ABCs”: Apple, Bluetooth and chat followed by download, e-
mail, Facebook, Google, Hotmail and Instagram. [ Michael L.
Rustad, SannaKulevska, “Reconceptualizing the right to be E
forgotten to enable transatlantic data flow”, (2015) 28 Harv JL &
Tech 349.] They should not be subjected to the consequences of
their childish mistakes and naivety, their entire life. Privacy of
children will require special protection not just in the context of
the virtual world, but also the real world.
F
634. People change and an individual should be able to determine
the path of his life and not be stuck only on a path of which he/she
treaded initially. An individual should have the capacity to change
his/her beliefs and evolve as a person. Individuals should not live
in fear that the views they expressed will forever be associated
with them and thus refrain from expressing themselves. G
635. Whereas this right to control dissemination of personal
information in the physical and virtual space should not amount to
a right of total eraser of history, this right, as a part of the larger
right to privacy, has to be balanced against other fundamental
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A rights like the freedom of expression, or freedom of media,

fundamental to a democratic society.
636. Thus, the European Union Regulation of 2016 [Regulation
No. (EU) 2016/679 of the European Parliament and of the Council
of 27-4-2016 on the protection of natural persons with regard to
B the processing of personal data and on the free movement of
such data, and repealing Directive No. 95/46/EC (General Data
Protection Regulation).] has recognised what has been termed as
“the right to be forgotten”. This does not mean that all aspects of
earlier existence are to be obliterated, as some may have a social
ramification. If we were to recognise a similar right, it would only
C mean that an individual who is no longer desirous of his personal
data to be processed or stored, should be able to remove it from
the system where the personal data/information is no longer
necessary, relevant, or is incorrect and serves no legitimate interest.
Such a right cannot be exercised where the information/data is
D necessary, for exercising the right of freedom of expression and
information, for compliance with legal obligations, for the
performance of a task carried out in public interest, on the grounds
of public interest in the area of public health, for archiving purposes
in the public interest, scientific or historical research purposes or
statistical purposes, or for the establishment, exercise or defence
E of legal claims. Such justifications would be valid in all cases of
breach of privacy, including breaches of data privacy.”
(vi) Right to privacy cannot be impinged without a just, fair
and reasonable law: It has to fulfill the test of proportionality i.e. (i)
existence of a law; (ii) must serve a legitimate State aim; and (iii)
F proportionality.
“Dr. D.Y. Chandrachud, J. :
310. While it intervenes to protect legitimate State interests, the
State must nevertheless put into place a robust regime that ensures
G the fulfilment of a threefold requirement. These three requirements
apply to all restraints on privacy (not just informational privacy).
They emanate from the procedural and content-based mandate
of Article 21. The first requirement that there must be a law in
existence to justify an encroachment on privacy is an express
requirement of Article 21. For, no person can be deprived of his
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 249
[A. K. SIKRI, J.]

life or personal liberty except in accordance with the procedure A

established by law. The existence of law is an essential requirement.
Second, the requirement of a need, in terms of a legitimate State
aim, ensures that the nature and content of the law which imposes
the restriction falls within the zone of reasonableness mandated
by Article 14, which is a guarantee against arbitrary State action.
B
The pursuit of a legitimate State aim ensures that the law does
not suffer from manifest arbitrariness. Legitimacy, as a postulate,
involves a value judgment. Judicial review does not reappreciate
or second guess the value judgment of the legislature but is for
deciding whether the aim which is sought to be pursued suffers
from palpable or manifest arbitrariness. The third requirement C
ensures that the means which are adopted by the legislature are
proportional to the object and needs sought to be fulfilled by the
law. Proportionality is an essential facet of the guarantee against
arbitrary State action because it ensures that the nature and quality
of the encroachment on the right is not disproportionate to the
D
purpose of the law. Hence, the threefold requirement for a valid
law arises out of the mutual interdependence between the
fundamental guarantees against arbitrariness on the one hand and
the protection of life and personal liberty, on the other. The right
to privacy, which is an intrinsic part of the right to life and liberty,
and the freedoms embodied in Part III is subject to the same E
restraints which apply to those freedoms.
311. Apart from national security, the State may have justifiable
reasons for the collection and storage of data. In a social welfare
State, the Government embarks upon programmes which provide
benefits to impoverished and marginalised sections of society. There F
is a vital State interest in ensuring that scarce public resources
are not dissipated by the diversion of resources to persons who
do not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the utilisation
of resources should not be siphoned away for extraneous purposes.
Data mining with the object of ensuring that resources are properly G
deployed to legitimate beneficiaries is a valid ground for the State
to insist on the collection of authentic data. But, the data which
the State has collected has to be utilised for legitimate purposes
of the State and ought not to be utilised unauthorisedly for
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250 SUPREME COURT REPORTS [2018] 8 S.C.R.

A extraneous purposes. This will ensure that the legitimate concerns

of the State are duly safeguarded while, at the same time,
protecting privacy concerns. Prevention and investigation of crime
and protection of the revenue are among the legitimate aims of
the State. Digital platforms are a vital tool of ensuring good
governance in a social welfare State. Information technology—
B
legitimately deployed is a powerful enabler in the spread of
innovation and knowledge.
312. A distinction has been made in contemporary literature
between anonymity on one hand and privacy on the other. [See in
this connection, Jeffrey M. Skopek, “Reasonable Expectations of
C Anonymity”, Virginia Law Review (2015), Vol. 101, at pp. 691-
762.] Both anonymity and privacy prevent others from gaining
access to pieces of personal information yet they do so in opposite
ways. Privacy involves hiding information whereas anonymity
involves hiding what makes it personal. An unauthorised parting
D of the medical records of an individual which have been furnished
to a hospital will amount to an invasion of privacy. On the other
hand, the State may assert a legitimate interest in analysing data
borne from hospital records to understand and deal with a public
health epidemic such as malaria or dengue to obviate a serious
impact on the population. If the State preserves the anonymity of
E the individual it could legitimately assert a valid State interest in
the preservation of public health to design appropriate policy
interventions on the basis of the data available to it.
313. Privacy has been held to be an intrinsic element of the right
to life and personal liberty under Article 21 and as a constitutional
F value which is embodied in the fundamental freedoms embedded
in Part III of the Constitution. Like the right to life and liberty,
privacy is not absolute. The limitations which operate on the right
to life and personal liberty would operate on the right to privacy.
Any curtailment or deprivation of that right would have to take
G place under a regime of law. The procedure established by law
must be fair, just and reasonable. The law which provides for the
curtailment of the right must also be subject to constitutional
safeguards.
xx xx xx
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 251
[A. K. SIKRI, J.]

325. Like other rights which form part of the fundamental freedoms A
protected by Part III, including the right to life and personal liberty
under Article 21, privacy is not an absolute right. 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
B
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 threefold
requirement of (i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate State aim; and (iii) C
proportionality which ensures a rational nexus between the objects
and the means adopted to achieve them.
S.A. Bobde, J. :
426. There is no doubt that privacy is integral to the several
D
fundamental rights recognised by Part III of the Constitution and
must be regarded as a fundamental right itself. The relationship
between the right to privacy and the particular fundamental right
(or rights) involved would depend on the action interdicted by a
particular law. At a minimum, since privacy is always integrated
with personal liberty, the constitutionality of the law which is alleged E
to have invaded into a rights bearer’s privacy must be tested by
the same standards by which a law which invades personal liberty
under Article 21 is liable to be tested. Under Article 21, the standard
test at present is the rationality review expressed in Maneka
Gandhi case [Maneka Gandhi v. Union of India, (1978) 1
F
SCC 248] . This requires that any procedure by which the State
interferes with an Article 21 right to be “fair, just and reasonable,
not fanciful, oppressive or arbitrary” [Maneka Gandhi v. Union
of India, (1978) 1 SCC 248 at p. 323, para 48].
R.F. Nariman, J. :
G
526. But this is not to say that such a right is absolute. This right is
subject to reasonable regulations made by the State to protect
legitimate State interests or public interest. However, when it comes
to restrictions on this right, the drill of various articles to which the
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252 SUPREME COURT REPORTS [2018] 8 S.C.R.

A right relates must be scrupulously followed. For example, if the

restraint on privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under Article
21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1)(a) only if it relates to the
subjects mentioned in Article 19(2) and the tests laid down by this
B
Court for such legislation or subordinate legislation to pass muster
under the said article. Each of the tests evolved by this Court, qua
legislation or executive action, under Article 21 read with Article
14; or Article 21 read with Article 19(1)(a) in the aforesaid
examples must be met in order that State action pass muster. In
C the ultimate analysis, the balancing act that is to be carried out
between individual, societal and State interests must be left to the
training and expertise of the judicial mind.
S.K. Kaul, J. :
638. The concerns expressed on behalf of the petitioners arising
D from the possibility of the State infringing the right to privacy can
be met by the test suggested for limiting the discretion of the
State:
“(i) The action must be sanctioned by law;

E (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
F interference.”
Chelameswar, J.:
377. It goes without saying that no legal right can be absolute.
Every right has limitations. This aspect of the matter is conceded
at the Bar. Therefore, even a fundamental right to privacy has
G
limitations. The limitations are to be identified on case-to-case
basis depending upon the nature of the privacy interest claimed.
There are different standards of review to test infractions of
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles (even
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 253
[A. K. SIKRI, J.]

if only slightly differently across some of them). Having A

emphatically interpreted the Constitution’s liberty guarantee to
contain a fundamental right to privacy, it is necessary for me to
outline the manner in which such a right to privacy can be limited.
I only do this to indicate the direction of the debate as the nature
of limitation is not at issue here.
B
378. To begin with, the options canvassed for limiting the right to
privacy include an Article 14 type reasonableness enquiry [A
challenge under Article 14 can be made if there is an unreasonable
classification and/or if the impugned measure is arbitrary. The
classification is unreasonable if there is no intelligible differentia
justifying the classification and if the classification has no rational C
nexus with the objective sought to be achieved. Arbitrariness,
which was first explained at para 85 of E.P. Royappa v. State of
T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555,
is very simply the lack of any reasoning.] ; limitation as per the
express provisions of Article 19; a just, fair and reasonable basis D
(that is, substantive due process) for limitation per Article 21; and
finally, a just, fair and reasonable standard per Article 21 plus the
amorphous standard of “compelling State interest”. The last of
these four options is the highest standard of scrutiny [ A tiered
level of scrutiny was indicated in what came to be known as the
most famous footnote in constitutional law, that is, fn 4 in United E
States v. Carolene Products Co., 1938 SCC OnLine US SC 93 :
82 L Ed 1234 : 304 US 144 (1938). Depending on the graveness
of the right at stake, the court adopts a correspondingly rigorous
standard of scrutiny.] that a court can adopt. It is from this menu
that a standard of review for limiting the right to privacy needs to F
be chosen.
379. At the very outset, if a privacy claim specifically flows only
from one of the expressly enumerated provisions under Article
19, then the standard of review would be as expressly provided
under Article 19. However, the possibility of a privacy claim being G
entirely traceable to rights other than Article 21 is bleak. Without
discounting that possibility, it needs to be noted that Article 21 is
the bedrock of the privacy guarantee. If the spirit of liberty
permeates every claim of privacy, it is difficult, if not impossible,
to imagine that any standard of limitation other than the one under
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254 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Article 21 applies. It is for this reason that I will restrict the available
options to the latter two from the above described four.
380. The just, fair and reasonable standard of review under Article
21 needs no elaboration. It has also most commonly been used in
cases dealing with a privacy claim hitherto. [District Registrar
B and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005
SC 186] , [State of Maharashtra v. Bharat Shanti Lal Shah,
(2008) 13 SCC 5] Gobind [Gobind v. State of M.P., (1975) 2
SCC 148 : 1975 SCC (Cri) 468] resorted to the compelling State
interest standard in addition to the Article 21 reasonableness
enquiry. From the United States, where the terminology of
C “compelling State interest” originated, a strict standard of scrutiny
comprises two things—a “compelling State interest” and a
requirement of “narrow tailoring” (narrow tailoring means that
the law must be narrowly framed to achieve the objective). As a
term, “compelling State interest” does not have definite contours
D in the US. Hence, it is critical that this standard be adopted with
some clarity as to when and in what types of privacy claimsit
is to be used. Only in privacy claims which deserve the strictest
scrutiny is the standard of compelling State interest to be used.
As for others, the just, fair and reasonable standard under Article
21 will apply. When the compelling State interest standard is to be
E employed, must depend upon the context of concrete cases.
However, this discussion sets the ground rules within which a
limitation for the right to privacy is to be found.”
82. In view of the aforesaid detailed discussion in all the opinions
penned by six Hon’ble Judges, it stands established, without any pale of
F doubt, that privacy has now been treated as part of fundamental rights.
The Court has held, in no uncertain terms, that privacy has always been
a natural right which gives an individual freedom to exercise control
over his or her personality. The judgment further affirms three aspects
of the fundamental right to privacy, namely:
G (i) intrusion with an individual’s physical body;
(ii) informational privacy; and
(iii) privacy of choice.

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 255
[A. K. SIKRI, J.]

83. As succinctly put by Nariman, J. first aspect involves the person A

himself/herself and guards a person’s rights relatable to his/her physical
body thereby controlling the uncalled invasion by the State. Insofar as
the second aspect, namely, informational privacy is concerned, it does
not deal with a person’s body but deals with a person’s mind. In this
manner, it protects a person by giving her control over the dissemination
B
of material that is personal to her and disallowing unauthorised use of
such information by the State. Third aspect of privacy relates to
individual’s autonomy by protecting her fundamental personal choices.
These aspects have functional connection and relationship with dignity.
In this sense, privacy is a postulate of human dignity itself. Human
dignity has a constitutional value and its significance is acknowledged by C
the Preamble. Further, by catena of judgments, human dignity is treated
as a fundamental right and as a facet not only of Article 21 but that of
right to equality (Article 14) and also part of bouquet of freedoms
stipulated in Article 19. Therefore, privacy as a right is intrinsic of freedom,
liberty and dignity. Viewed in this manner, one can trace positive and
D
negative contents of privacy. The negative content restricts the State
from committing an intrusion upon the life and personal liberty of a citizen.
Its positive content imposes an obligation on the State to take all necessary
measures to protect the privacy of the individual.
84. A brief summation of the judgment on privacy would indicate
that privacy is treated as fundamental right. It is predicated on the basis E
that privacy is a postulate of dignity and the concept of dignity can be
traced to the preamble of the Constitution as well as Article 21 thereof.
Further, privacy is considered as a subset of personal liberty thereby
accepting the minority opinion in Kharak Singh v. State of U.P. &
Ors.29 Another significant jurisprudential development of this judgment F
is that right to privacy as a fundamental right is not limited to Article 21.
On the contrary, privacy resonates through the entirety of Part III of the
Constitution which pertains to fundamental rights and, in particular,
Articles 14, 19 and 21. Privacy is also recognised as a natural right
which inheres in individuals and is, thus, inalienable. In developing the
aforesaid concepts, the Court has been receptive to the principles in G
international law and international instruments. It is a recognition of the
fact that certain human rights cannot be confined within the bounds of
geographical location of a nation but have universal application. In the
29
AIR 1963 SC 1295
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256 SUPREME COURT REPORTS [2018] 8 S.C.R.

A process, the Court accepts the concept of universalisation of human

rights, including the right to privacy as a human right and the good practices
in developing and understanding such rights in other countries have been
welcomed. In this hue, it can also be remarked that comparative law
has played a very significant role in shaping the aforesaid judgment on
privacy in Indian context, notwithstanding the fact that such comparative
B
law has only a persuasive value.
85. The whole process of reasoning contained in different opinions
of the Hon’ble Judges would, thus, reflect that the argument that it is
difficult to precisely define the common denominator of privacy, was
rejected. While doing so, the Court referred to various approaches in
C formulating privacy30. An astute and sagacious analysis of the judgment
by the Centre for Internet and Society brings about the following
approaches which contributed to formulating the following right to privacy:
(a) Classifying privacy on the basis of ‘harms’, thereby adopting
the approach conceptualised by Daniel Solove. In his book,
D Understanding Privacy31, Daniel Solove makes a case for privacy being
a family resemblance concept.
(b) Classifying privacy on the basis of ‘interests’: Gary Bostwick’s
taxonomy of privacy is among the most prominent amongst the
scholarship that sub-areas within the right to privacy protect different
E ‘interests’ or ‘justifications’. This taxonomy is adopted in Chelameswar,
J.’s definition of ‘privacy’ and includes the three interests of privacy of
repose, privacy of sanctuary and privacy of intimate decision. Repose
is the ‘right to be let alone’, sanctuary is the interest which prevents
others from knowing, seeing and hearing thus keeping information within
F the private zone, and finally, privacy of intimate decision protects the
freedom to act autonomously.
(c) Classifying privacy as an ‘aggregation of rights’: This approach
in classifying privacy as a right, as highlighted above, is not limited to one
particular provision in the Chapter of Fundamental Rights under the
G Constitution but is associated with amalgam of different but connected
rights. In formulating this principle, the Court has referred to scholars
like Roger Clarke, Anita Allen etc. It has led to the recognition of private
30
See the analysis of this judgment by the Centre for Internet and Society, https://cis-
india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis
31
Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard
H University Press, 2008.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 257
[A. K. SIKRI, J.]

spaces or zones as protected under the right to privacy (thereby extending A

the ambit and scope of spatial privacy), informational privacy and
decisional autonomy.
86. The important question that arises, which is directly involved
in these cases, is:
What is the scope of the right to privacy and in what B
circumstances such a right can be limited?
87. Concededly, fundamental rights are not absolute. The
Constitution itself permits State to impose reasonable restrictions on these
rights under certain circumstances. Thus, extent and scope of the right
to privacy and how and when it can be limited by the State actions is C
also to be discerned. As noted above, Nariman, J. has led the path by
observing that “when it comes to restrictions on this right, the drill of
various Articles to which the right relates must be scrupulously followed”.
Therefore, examination has to be from the point of view of Articles 14,
19 and 21 for the reason that right to privacy is treated as having intimate D
connection to various rights in Part III and is not merely related to Article
21. Looked from this angle, the action of the State will have to be tested
on the touchstone of Article 14. This judgment clarifies that the
‘classification’ test adopted earlier has to be expanded and instead the
law/action is to be tested on the ground of ‘manifest arbitrariness’. This
aspect has already been discussed in detail under the caption ‘Scope of E
Judicial Review’ above. When it comes to examining the ‘restrictions’
as per the provisions of Article 19 of the Constitution, the judgment
proceeds to clarify that a law which impacts dignity and liberty under
Article 21, as well as having chilling effects on free speech which is
protected by Article 19(1)(a), must satisfy the standards of judicial review F
under both provisions. Therefore, such restriction must satisfy the test
of judicial review under: (i) one of the eight grounds mentioned under
Article 19(2); and (ii) the restriction should be reasonable. This Court
has applied multiple standards to determine reasonableness, including
proximity, arbitrariness, and proportionality. Further, the reasonable
restrictions must be in the interests of: (i) the sovereignty and integrity of G
India, (ii) the security of the State, (iii) friendly relations with foreign
States, (iv) public order, (v) decency or morality or (vi) in relation to
contempt of court, (vii) defamation or (viii) incitement to an offence.

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258 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 88. The judgment further lays down that in the context of Article
21, the test to be applied while examining a particular provision is the
‘just, fair and reasonable test’ thereby bringing notion of proportionality.
89. The petitioners have sought to build their case on the aforesaid
parameters of privacy and have submitted that this right of privacy, which
B is now recognised as a fundamental right, stands violated by the very
fabric contained in the scheme of Aadhaar. It is sought to be highlighted
that the data which is collected by the State, particularly with the
authentication of each transaction entered into by an individual, can be
assimilated to construct a profile of such an individual and it particularly
violates informational privacy. No doubt, there can be reasonable
C restrictions on this right, which is conceded by the petitioners. It is,
however, argued that right to privacy cannot be impinged without a just,
fair and reasonable law. Therefore, in the first instance, any intrusion
into the privacy of a person has to be backed by a law. Further, such a
law, to be valid, has to pass the test of legitimate aim which it should
D serve and also proportionality i.e. proportionate to the need for such
interference. Not only this, the law in question must also provide
procedural guarantees against abuse of such interference.
90. At the same time, it can also be deduced from the reading of
the aforesaid judgment that the reasonable expectation of privacy may
E vary from the intimate zone to the private zone and from the private
zone to the public arena. Further, privacy is not lost or surrendered
merely because the individual is in a public place. For example, if a
person was to post on Facebook vital information about himself, the
same being in public domain, he would not be entitled to claim privacy
right. This aspect is highlighted by some of the Hon’ble Judges as under:
F
Dr. D.Y. Chandrachud, J.:
“297. What, then, does privacy postulate? Privacy postulates the
reservation of a private space for the individual, described as the
right to be let alone. The concept is founded on the autonomy of
G the individual. The ability of an individual to make choices lies at
the core of the human personality. The notion of privacy enables
the individual to assert and control the human element which is
inseparable from the personality of the individual. The inviolable
nature of the human personality is manifested in the ability to
make decisions on matters intimate to human life. The autonomy
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 259
[A. K. SIKRI, J.]

of the individual is associated over matters which can be kept A

private. These are concerns over which there is a legitimate
expectation of privacy. The body and the mind are inseparable
elements of the human personality. The integrity of the body and
the sanctity of the mind can exist on the foundation that each
individual possesses an inalienable ability and right to preserve a
B
private space in which the human personality can develop. Without
the ability to make choices, the inviolability of the personality would
be in doubt. Recognising a zone of privacy is but an
acknowledgment that each individual must be entitled to chart
and pursue the course of development of personality. Hence
privacy is a postulate of human dignity itself. Thoughts and C
behavioural patterns which are intimate to an individual are entitled
to a zone of privacy where one is free of social expectations. In
that zone of privacy, an individual is not judged by others. Privacy
enables each individual to take crucial decisions which find
expression in the human personality. It enables individuals to
D
preserve their beliefs, thoughts, expressions, ideas, ideologies,
preferences and choices against societal demands of homogeneity.
Privacy is an intrinsic recognition of heterogeneity, of the right of
the individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects the
individual from the searching glare of publicity in matters which E
are personal to his or her life. Privacy attaches to the person and
not to the place where it is associated. Privacy constitutes the
foundation of all liberty because it is in privacy that the individual
can decide how liberty is best exercised. Individual dignity and
privacy are inextricably linked in a pattern woven out of a thread
F
of diversity into the fabric of a plural culture.
xx xx xx
299. Privacy represents the core of the human personality and
recognises the ability of each individual to make choices and to
take decisions governing matters intimate and personal. Yet, it is G
necessary to acknowledge that individuals live in communities and
work in communities. Their personalities affect and, in turn are
shaped by their social environment. The individual is not a hermit.
The lives of individuals are as much a social phenomenon. In their
interactions with others, individuals are constantly engaged in
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260 SUPREME COURT REPORTS [2018] 8 S.C.R.

A behavioural patterns and in relationships impacting on the rest of

society. Equally, the life of the individual is being consistently shaped
by cultural and social values imbibed from living in the community.
This state of flux which represents a constant evolution of individual
personhood in the relationship with the rest of society provides
the rationale for reserving to the individual a zone of repose. The
B
lives which individuals lead as members of society engender a
reasonable expectation of privacy. The notion of a reasonable
expectation of privacy has elements both of a subjective and
objective nature. Privacy at a subjective level is a reflection of
those areas where an individual desires to be left alone. On an
C objective plane, privacy is defined by those constitutional values
which shape the content of the protected zone where the individual
ought to be left alone. The notion that there must exist a reasonable
expectation of privacy ensures that while on the one hand, the
individual has a protected zone of privacy, yet on the other, the
exercise of individual choices is subject to the rights of others to
D
lead orderly lives. For instance, an individual who possesses a
plot of land may decide to build upon it subject to zoning regulations.
If the building bye-laws define the area upon which construction
can be raised or the height of the boundary wall around the property,
the right to privacy of the individual is conditioned by regulations
E designed to protect the interests of the community in planned
spaces. Hence while the individual is entitled to a zone of privacy,
its extent is based not only on the subjective expectation of the
individual but on an objective principle which defines a reasonable
expectation.
F xx xx xx
307. The sphere of privacy stretches at one end to those intimate
matters to which a reasonable expectation of privacy may attach.
It expresses a right to be left alone. A broader connotation which
has emerged in academic literature of a comparatively recent
G origin is related to the protection of one’s identity. Data protection
relates closely with the latter sphere. Data such as medical
information would be a category to which a reasonable expectation
of privacy attaches. There may be other data which falls outside
the reasonable expectation paradigm. Apart from safeguarding
privacy, data protection regimes seek to protect the autonomy of
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 261
[A. K. SIKRI, J.]

the individual. This is evident from the emphasis in the European A

data protection regime on the centrality of consent. Related to the
issue of consent is the requirement of transparency which requires
a disclosure by the data recipient of information pertaining to data
transfer and use.”
S.A. Bobde, J: B
“421. Shri Rakesh Dwivedi, appearing for the State of Gujarat,
while referring to several judgments of the Supreme Court of the
United States, submitted that only those privacy claims which
involve a “reasonable expectation of privacy” be recognised as
protected by the fundamental right. It is not necessary for the C
purpose of this case to deal with the particular instances of privacy
claims which are to be recognised as implicating a fundamental
right. Indeed, it would be premature to do so. The scope and
ambit of a constitutional protection of privacy can only be revealed
to us on a case-by-case basis.”
D
91. Though Nariman, J. did not subscribe to the aforesaid view in
totality, however, His Lordship has also given an example that if a person
has to post on Facebook vital information, the same being in public domain,
she would not be entitled to the claim of privacy right.
92. We would also like to reproduce following discussion, in the E
opinion authored by Nariman, J., giving the guidance as to how a law
has to be tested when it is challenged on the ground that it violates the
fundamental right to privacy:
“...Statutory provisions that deal with aspects of privacy would
continue to be tested on the ground that they would violate the F
fundamental right to privacy, and would not be struck down, if it is
found on a balancing test that the social or public interest and the
reasonableness of the restrictions would outweigh the particular
aspect of privacy claimed. If this is so, then statutes which would
enable the State to contractually obtain information about persons
would pass muster in given circumstances, provided they safeguard G
the individual right to privacy as well. A simple example would
suffice. If a person was to paste on Facebook vital information
about himself/herself, such information, being in the public domain,
could not possibly be claimed as a privacy right after such
disclosure. But, in pursuance of a statutory requirement, if certain
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262 SUPREME COURT REPORTS [2018] 8 S.C.R.

A details need to be given for the statutory purpose concerned, then

such details would certainly affect the right to privacy, but would
on a balance, pass muster as the State action concerned has
sufficient inbuilt safeguards to protect this right—viz. the fact that
such information cannot be disseminated to anyone else, save on
compelling grounds of public interest.”
B
93. One important comment which needs to be made at this stage
relates to the standard of judicial review while examining the validity of
a particular law that allegedly infringes right to privacy. The question is
as to whether the Court is to apply ‘strict scrutiny’ standard or the ‘just,
fair and reasonableness’ standard. In the privacy judgment, different
C observations are made by different Hon’ble Judges and the aforesaid
aspect is not determined authoritatively, may be for the reason that the
Bench was deciding the reference on the issue as to whether right to
privacy is a fundamental right or not and, in the process, it was called
upon to decide the specific questions referred to it. We have dealt with
D this aspect at the appropriate stage.
Principles of Human Dignity:
94. While undertaking the analysis of the judgment in K.S.
Puttaswamy, we have mentioned that one of the attributes laid down
therein is that the sanctity of privacy lies in its functional relationship
E with dignity. Privacy is the constitutional core of human dignity. In the
context of Aadhaar scheme how the concept of human dignity is to be
applied assumes significance.
95. In Common Cause v. Union of India32, the concept of human
dignity has been explained in much detail33. The concept of human
F dignity developed in the said judgment was general in nature which is
based on right to autonomy and right of choice and it has become a
constitutional value. In the last 40 years or so, this Court has given
many landmark judgments wherein concept of human dignity is recognised
as an attribute of fundamental rights. In the earlier years, though the
G meaning and scope of human dignity by itself was not expanded, this
exercise has been undertaken in last few years. Earlier judgments have
mentioned that human dignity is the intrinsic value of every human being
and, in the process, a person’s autonomy as an attribute of dignity stands
recognised. The judgments rendered in the last few years have
32
(2018) 5 SCC 1
H 33
See paras 72-79 of the judgment
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 263
[A. K. SIKRI, J.]

attempted to provide jurisprudential basis to the concept of human dignity A

itself.
96. In National Legal Services Authority v. Union of India &
Ors.34 while recognising the right of transgenders of self determination
of their sex, the Court explained the contours of human dignity in the
following words: B
“106. The basic principle of the dignity and freedom of the
individual is common to all nations, particularly those having
democratic set up. Democracy requires us to respect and develop
the free spirit of human being which is responsible for all progress
in human history. Democracy is also a method by which we C
attempt to raise the living standard of the people and to give
opportunities to every person to develop his/her personality. It is
founded on peaceful co-existence and cooperative living. If
democracy is based on the recognition of the individuality and
dignity of man, as a fortiori we have to recognize the right of a
human being to choose his sex/gender identity which is integral to D
his/her personality and is one of the most basic aspect of self-
determination, dignity and freedom. In fact, there is a growing
recognition that the true measure of development of a nation is
not economic growth; it is human dignity.
107. More than 225 years ago, Immanuel Kant propounded the E
doctrine of free will, namely, the free willing individual as a natural
law ideal. Without going into the detailed analysis of his aforesaid
theory of justice (as we are not concerned with the analysis of his
jurisprudence) what we want to point out is his emphasis on the
“freedom” of human volition. The concepts of volition and freedom F
are “pure”, that is not drawn from experience. They are
independent of any particular body of moral or legal rules. They
are presuppositions of all such rules, valid and necessary for all of
them.
108. Over a period of time, two divergent interpretations of the G
Kantian criterion of justice came to be discussed. One trend was
an increasing stress on the maximum of individual freedom of
action as the end of law. This may not be accepted and was
criticised by the protagonist of “hedonist utilitarianism”, notably
34
(2014) 5 SCC 438
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264 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Bentham. This school of thought laid emphasis on the welfare of

the society rather than an individual by propounding the principle
of maximum of happiness to most of the people. Fortunately, in
the instant case, there is no such dichotomy between the individual
freedom/liberty we are discussing, as against public good. On the
contrary, granting the right to choose gender leads to public good.
B
The second tendency of the Kantian criterion of justice was
found in reinterpreting “freedom” in terms not merely of
absence of restraint but in terms of attainment of individual
perfection. It is this latter trend with which we are concerned in
the present case and this holds good even today. As pointed out
C above, after the Second World War, in the form of the UN Charter
and thereafter there is more emphasis on the attainment of individual
perfection. In that united sense at least there is a revival of the
natural law theory of justice. Blackstone, in the opening pages in
his “Vattelian Fashion” said that the principal aim of society “is to
protect individuals in the enjoyment of those absolute rights which
D
were vested in them by the immutable laws of nature….”
97. Thus, right of choice and right of self determination were
accepted as facets of human dignity. It was also emphasised that in
certain cases, like the case at hand (that of transgenders), recognition of
this aspect of human dignity would yield happiness to the individuals and,
E at the same time, also be in public good.
98. Advancement in conceptualising the doctrine of human dignity
took place in the case of Shabnam v. Union of India & Ors.35 wherein
this Court has gone to the extent of protecting certain rights of death
convicts by holding that they cannot be executed till they exhaust all
F available constitutional and statutory remedies. In the process, the Court
held as under:
“”15. This right to human dignity has many elements. First and
foremost, human dignity is the dignity of each human being ‘as a
human being’. Another element, which needs to be highlighted,
G in the context of the present case, is that human dignity is infringed
if a person’s life, physical or mental welfare is harmed. It is in
this sense torture, humiliation, forced labour, etc. all infringe on
human dignity. It is in this context many rights of the accused
derive from his dignity as a human being. These may include the
35
(2015) 6 SCC 702
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 265
[A. K. SIKRI, J.]

presumption that every person is innocent until proven guilty; the A

right of the accused to a fair trial as well as speedy trial; right of
legal aid, all part of human dignity. Even after conviction, when a
person is spending prison life, allowing humane conditions in jail is
part of human dignity. Prisons reforms or Jail reforms measures
to make convicts a reformed person so that they are able to lead
B
normal life and assimilate in the society, after serving the jail term,
are motivated by human dignity jurisprudence.
16. In fact, this principle of human dignity has been used frequently
by Courts in the context of considering the death penalty itself.
Way back in the year 1972, the United States Supreme Court
kept in mind this aspect in the case of Furman v. Georgia 408 C
US 238 (1972). The Court, speaking through Brennan, J., while
considering the application of Eighth Amendment’s prohibition on
cruel and unusual punishments, summed up the previous
jurisprudence on the Amendment as ‘prohibit(ing) the infliction of
uncivilized and inhuman punishments. The State, even as it D
punishes, must treat its members with respect for their intrinsic
worth as human beings. A punishment is ‘cruel and unusual’,
therefore, if it does not comport with human dignity’. In Gregg v.
Georgia 428 US 153 (1976), that very Court, again through
Brennan, J., considered that ‘the fatal constitutional infirmity in
the punishment of death is that it treats “members of the human E
race as non-humans, as objects to be toyed with an discarded.
(It is), thus, inconsistent with the fundamental premise of the
clause that even the vilest criminal remains a human being
possessed of common human dignity’. The Canadian Supreme
Court, the Hungarian Constitutional Court and the South African F
Supreme Court have gone to the extent of holding that capital
punishment constitutes a serious impairment of human dignity and
imposes a limitation on the essential content of the fundamental
rights to life and human dignity and on that touchstone declaring
that dignity as unconstitutional.”
G
99. Next judgment in this line of cases would be that of Jeeja
Ghosh & Another v. Union of India & Ors. 36 wherein the Court,
while expanding the jurisprudential basis, outlined three models of dignity
which have been discussed by us above. These were referred to while
36
(2016) 7 SCC 761
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266 SUPREME COURT REPORTS [2018] 8 S.C.R.

A explaining the normative role of human dignity, alongside, in the following

manner:
“37. The rights that are guaranteed to differently-abled persons
under the 1995 Act, are founded on the sound principle of human
dignity which is the core value of human right and is treated as a
B significant facet of right to life and liberty. Such a right, now treated
as human right of the persons who are disabled, has it roots in
Article 21 of the Constitution. Jurisprudentially, three types of
models for determining the content of the constitutional value of
human dignity are recognised. These are: (i) Theological Models,
(ii) Philosophical Models, and (iii) Constitutional Models. Legal
C scholars were called upon to determine the theological basis of
human dignity as a constitutional value and as a constitutional
right. Philosophers also came out with their views justifying human
dignity as core human value. Legal understanding is influenced
by theological and philosophical views, though these two are not
D identical. Aquinas and Kant discussed the jurisprudential aspects
of human dignity based on the aforesaid philosophies. Over a period
of time, human dignity has found its way through constitutionalism,
whether written or unwritten. Even right to equality is interpreted
based on the value of human dignity. Insofar as India is concerned,
we are not even required to take shelter under theological or
E philosophical theories. We have a written Constitution which
guarantees human rights that are contained in Part III with the
caption “Fundamental Rights”. One such right enshrined in Article
21 is right to life and liberty. Right to life is given a purposeful
meaning by this Court to include right to live with dignity. It is the
F purposive interpretation which has been adopted by this Court to
give a content of the right to human dignity as the fulfilment of the
constitutional value enshrined in Article 21. Thus, human dignity
is a constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is beautifully
illustrated by Aharon Barak (former Chief Justice of the Supreme
G Court of Israel) in the following manner:
“The constitutional value of human dignity has a central
normative role. Human dignity as a constitutional value is the
factor that unites the human rights into one whole. It ensures
the normative unity of human rights. This normative unity is
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 267
[A. K. SIKRI, J.]

expressed in the three ways: first, the value of human dignity A

serves as a normative basis for constitutional rights set out in
the Constitution; second, it serves as an interpretative principle
for determining the scope of constitutional rights, including the
right to human dignity; third, the value of human dignity has an
important role in determining the proportionality of a statute
B
limiting a constitutional right.”
38. All the three goals of human dignity as a constitutional value
are expanded by the author in a scholarly manner. Some of the
excerpts thereof, are reproduced below which give a glimpse of
these goals:
C
“The first role of human dignity as a constitutional value is
expressed in the approach that it comprises the foundation for
all of the constitutional rights. Human dignity is the central
argument for the existence of human rights. It is the rationale
for them all. It is the justification for the existence of rights.
According to Christoph Enders, it is the constitutional value D
that determines that every person has the right to have rights…
The second role of human dignity as a constitutional value is to
provide meaning to the norms of the legal system. According
to purposive interpretation, all of the provisions of the
Constitution, and particularly all of the rights in the constitutional E
bill of rights, are interpreted in light of human dignity…
Lastly, human dignity as a constitutional value influences the
development of the common law. Indeed, where common law
is recognised, Judges have the duty to develop it, and if
necessary, modify it, so that it expresses constitutional values, F
including the constitutional value of human dignity. To the extent
that common law determines rights and duties between
individuals, it might limit the human dignity of one individual
and protect the human dignity of the other.”
100. The concept was developed and expanded further in K.S. G
Puttaswamy. The Court held that privacy postulates the reservation of
a private space for an individual, described as the right to be let alone, as
a concept founded on autonomy of the individual. In this way, right to
privacy has been treated as a postulate of human dignity itself. While
defining so, the Court also remarked as under:
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268 SUPREME COURT REPORTS [2018] 8 S.C.R.

A “298. Privacy of the individual is an essential aspect of dignity.

Dignity has both an intrinsic and instrumental value. As an intrinsic
value, human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom are
inseparably intertwined, each being a facilitative tool to achieve
the other. The ability of the individual to protect a zone of privacy
B
enables the realisation of the full value of life and liberty... The
family, marriage, procreation and sexual orientation are all integral
to the dignity of the individual. Above all, the privacy of the individual
recognises an inviolable right to determine how freedom shall be
exercised...”
C 101. This concept of dignity took a leap forwarded in the case of
Common Cause v. Union of India37 pertaining to passive euthanasia.
Though this right was earlier recognised in Aruna Ramachandra
Shanbaug v. Union of India & Ors.38, a totally new dimension was
given to this right, based on freedom of choice which is to be given to an
D individual accepting his dignity. There were four concurring opinions. In
one of the opinions39, the aspects of dignity are succinctly brought out in
the following manner:
“154. Dignity of an individual has been internationally recognised
as an important facet of human rights in the year 1948 itself with
E the enactment of the Universal Declaration of Human Rights.
Human dignity not only finds place in the Preamble of this important
document but also in Article 1 of the same. It is well known that
the principles set out in UDHR are of paramount importance and
are given utmost weightage while interpreting human rights all
over the world. The first and foremost responsibility fixed upon
F the State is the protection of human dignity without which any
other right would fall apart. Justice Brennan in his book The
Constitution of the United States: Contemporary Ratification
has referred to the Constitution as “a sparkling vision of the
supremacy of the human dignity of every individual”.
G 155. In fact, in Christine Goodwin v. United Kingdom the
European Court of Human Rights, speaking in the context of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, has gone to the extent of stating that “the very essence
37
(2018) 5 SCC 1
38
(2011) 4 SCC 454
H 39
Rendered by Dipak Misra, CJI
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 269
[A. K. SIKRI, J.]

of the Convention is respect for human dignity and human A

freedom”. In the South African case of S. v. Makwanyane,
O’Regan, J. stated in the Constitutional Court that “without dignity,
human life is substantially diminished”.
xx xx xx
157. The concept and value of dignity requires further elaboration B
since we are treating it as an inextricable facet of right to life that
respects all human rights that a person enjoys. Life is basically
self-assertion. In the life of a person, conflict and dilemma are
expected to be normal phenomena. Oliver Wendell Holmes, in
one of his addresses, quoted a line from a Latin poet who had C
uttered the message, “Death plucks my ear and says, Live—I am
coming”. That is the significance of living. But when a patient
really does not know if he/she is living till death visits him/her and
there is constant suffering without any hope of living, should one
be allowed to wait? Should she/he be cursed to die as life gradually
ebbs out from her/his being? Should she/he live because of D
innovative medical technology or, for that matter, should he/she
continue to live with the support system as people around him/her
think that science in its progressive invention may bring about an
innovative method of cure? To put it differently, should he/she be
“Guinea pig” for some kind of experiment? The answer has to be E
an emphatic “No” because such futile waiting mars the pristine
concept of life, corrodes the essence of dignity and erodes the
fact of eventual choice which is pivotal to privacy.
xx xx xx
159. In Mehmood Nayyar Azam v. State of Chhattisgarh, a F
two-Judge Bench held thus: (SCC p. 6, para 1)
“1. … Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, “the reverence of
life offers me my fundamental principle on morality”. The
aforesaid expression may appear to be an individualistic G
expression of a great personality, but, when it is understood in
the complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the fundamental
perception of a thinker about the respect that life commands.
The reverence of life is insegregably associated with the dignity
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270 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of a human being who is basically divine, not servile. A human

personality is endowed with potential infinity and it blossoms
when dignity is sustained. The sustenance of such dignity has
to be the superlative concern of every sensitive soul. The
essence of dignity can never be treated as a momentary spark
of light or, for that matter, “a brief candle”, or “a hollow bubble”.
B
The spark of life gets more resplendent when man is treated
with dignity sans humiliation, for every man is expected to lead
an honourable life which is a splendid gift of “creative
intelligence”.”
xx xx xx
C
166. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in
consonance with the developing concepts. The need of the present
has to be served with the interpretative process of law. However,
it is to be seen how much strength and sanction can be drawn
D from the Constitution to consummate the changing ideology and
convert it into a reality. The immediate needs are required to be
addressed through the process of interpretation by the Court unless
the same totally falls outside the constitutional framework or the
constitutional interpretation fails to recognise such dynamism. The
E Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab,
(1996) 2 SCC 648 : 1996 SCC (Cri) 374] , as stated earlier,
distinguishes attempt to suicide and abetment of suicide from
acceleration of the process of natural death which has
commenced. The authorities, we have noted from other
jurisdictions, have observed the distinctions between the
F administration of lethal injection or certain medicines to cause
painless death and non-administration of certain treatment which
can prolong the life in cases where the process of dying that has
commenced is not reversible or withdrawal of the treatment that
has been given to the patient because of the absolute absence of
G possibility of saving the life. To explicate, the first part relates to
an overt act whereas the second one would come within the sphere
of informed consent and authorised omission. The omission of
such a nature will not invite any criminal liability if such action is
guided by certain safeguards. The concept is based on non-
prolongation of life where there is no cure for the state the patient
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 271
[A. K. SIKRI, J.]

is in and he, under no circumstances, would have liked to have A

such a degrading state. The words “no cure” have to be understood
to convey that the patient remains in the same state of pain and
suffering or the dying process is delayed by means of taking
recourse to modern medical technology. It is a state where the
treating physicians and the family members know fully well that
B
the treatment is administered only to procrastinate the continuum
of breath of the individual and the patient is not even aware that
he is breathing. Life is measured by artificial heartbeats and the
patient has to go through this undignified state which is imposed
on him. The dignity of life is denied to him as there is no other
choice but to suffer an avoidable protracted treatment thereby C
thus indubitably casting a cloud and creating a dent in his right to
live with dignity and face death with dignity, which is a preserved
concept of bodily autonomy and right to privacy. In such a stage,
he has no old memories or any future hopes but he is in a state of
misery which nobody ever desires to have. Some may also silently
D
think that death, the inevitable factum of life, cannot be invited.
To meet such situations, the Court has a duty to interpret Article
21 in a further dynamic manner and it has to be stated without
any trace of doubt that the right to life with dignity has to include
the smoothening of the process of dying when the person is in a
vegetative state or is living exclusively by the administration of E
artificial aid that prolongs the life by arresting the dignified and
inevitable process of dying. Here, the issue of choice also comes
in. Thus analysed, we are disposed to think that such a right would
come within the ambit of Article 21 of the Constitution.”
102. In the other opinion40, four facets of euthanasia were F
discussed, namely: (i) philosophy of euthanasia, (ii) morality of euthanasia,
(iii) dignity in euthanasia, and (iv) economics of euthanasia. While
discussing dignity in euthanasia, the three models of dignity, namely,
theological, philosophical and constitutional model, were highlighted.
Thereafter, postulates of dignity have been explained in the following
manner: G

“292. Aharon Barak, former Chief Justice of the Supreme Court

of Israel, attributes two roles to the concept of human dignity as a
constitutional value, which are:
40
Rendered by A.K. Sikri, J.
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272 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 292.1. Human dignity lays a foundation for all the human rights as
it is the central argument for the existence of human rights.
292.2. Human dignity as a constitutional value provides meaning
to the norms of the legal system. In the process, one can discern
that the principle of purposive interpretation exhorts us to interpret
B all the rights given by the Constitution, in the light of the human
dignity. In this sense, human dignity influences the purposive
interpretation of the Constitution. Not only this, it also influences
the interpretation of every sub-constitutional norm in the legal
system. Moreover, human dignity as a constitutional value also
influences the development of the common law.
C
xx xx xx
295. Dworkin, being a philosopher-jurist, was aware of the idea
of a Constitution and of a constitutional right to human dignity. In
his book, Taking Rights Seriously, he noted that everyone who
D takes rights seriously must give an answer to the question why
human rights vis-à-vis the State exist. According to him, in order
to give such an answer one must accept, as a minimum, the idea
of human dignity. As he writes:
“Human dignity … associated with Kant, but defended by
E philosophers of different schools, supposes that there are ways
of treating a man that are inconsistent with recognising him as
a full member of the human community, and holds that such
treatment is profoundly unjust.”41
296. In his Book, Is Democracy Possible Here?42 Dworkin
F develops two principles about the concept of human dignity.
First principle regards the intrinsic value of every person viz.
every person has a special objective value which value is not only
important to that person alone but success or failure of the lives
of every person is important to all of us. The second principle,
according to Dworkin, is that of personal responsibility. According
G to this principle, every person has the responsibility for success in
his own life and, therefore, he must use his discretion regarding
the way of life that will be successful from his point of view.
Thus, Dworkin’s jurisprudence of human dignity is founded on
41
Ronald Dworkin, Taking Rights Seriously (A&C Black, 2013) 239.
42
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
H (Princeton University Press, 2006)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 273
[A. K. SIKRI, J.]

the aforesaid two principles which, together, not only define the A
basis but the conditions for human dignity. Dworkin went on to
develop and expand these principles in his book, Justice for
Hedgehogs (2011)43.
297. When speaking of rights, it is impossible to envisage it without
dignity. In his pioneering and all-inclusive Justice for Hedgehogs, B
he proffered an approach where respect for human dignity,
entails two requirements; first, self-respect i.e. taking the
objective importance of one’s own life seriously; this represents
the free will of the person, his capacity to think for himself and to
control his own life and second, authenticity i.e. accepting a
“special, personal responsibility for identifying what counts as C
success” in one’s own life and for creating that life “through a
coherent narrative” that one has chosen44. According to Dworkin,
these principles form the fundamental criteria supervising what
we should do in order to live well.45 They further explicate the
rights that individuals have against their political community,46 and D
they provide a rationale for the moral duties we owe to others.
This notion of dignity, which Dworkin gives utmost importance to,
is indispensable to any civilised society. It is what is constitutionally
recognised in our country and for good reason. Living well is a
moral responsibility of individuals; it is a continuing process that is
not a static condition of character but a mode that an individual E
constantly endeavours to imbibe. A life lived without dignity, is not
a life lived at all for living well implies a conception of human
dignity which Dworkin interprets includes ideals of self-respect
and authenticity.”
103. In summation, it can be said that the concept of human dignity F
dates back to thousands of years. Historically, human dignity, as a concept,
found its origin in different religions which is held to be an important
component of their theological approach. Jurists have given this approach
as ‘theological model’ of dignity. It is primarily based on the premise
that human beings are the creation of God and cannot be treated as G
43
Harvard University Press, 2011.
44
Kenneth W. Simons, “Dworkin’s Two Principle of Dignity: An Unsatisfactory Non-
Consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715
(2010)]
45
Footnote 33 above.
46
Footnote 32 above. H
274 SUPREME COURT REPORTS [2018] 8 S.C.R.

A mere material beings. Human identity is more ethical than spiritual

because man is creation of God; harm to a human being is harm to God.
God, thus, wishes to grant human being recognition, dignity and authority.
It is also religious belief that God is rational and determines his goals for
himself. Likewise, human being created by God too is rational and
determines his own goal. Therefore, man has freedom of will. A couple
B
of centuries ago, philosophical approach was given to the conception of
human dignity. This sphere was headed by German Philosopher Immanuel
Kant whose moral theory is divided into two parts: ethics and right.
According to Kant, a person acts ethically when he acts by force of a
duty that a rational agent self-legislates onto his own will. Thus, he
C talked of free will of the human being. For Kant, ethics include duties of
oneself (for example - to develop one’s talents) and to others (for example
- to contribute to their happiness). This ability is the human dignity of
man. Philosophical approach, thus, is metaethical one, which is a journey
from ‘human being’ and ‘remaining human’. This is explained by
Professor Upendra Baxi as the relationship between ‘self’, ‘others’ and
D
‘society’. In this philosophical sense, dignity is ‘respect’ for an individual
person based on the principle of freedom and capacity of making choices
and a good or just social order is one which respects dignity via assuring
‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’.
To put it philosophically, each individual has a right to live her life the
E way she wants, without any subjugation. One can rule others, but then
it is never noble. It is immoral because the other is not a means to you,
the other is an end to herself. Kant also maintains that to use the other
as a means is the basic immoral act. Everything else that is immoral is
immoral because of this, so this should be the criterion: Are you using
the other as a means? Someone has put this remarkably in the following
F
words:
“Alexander the Great is not noble, only Gautam the Buddha is
noble, for the simple reason that Buddha has no rule over others
but he is a matter of himself.
G There is no part of his being which is not in tune with him. He has
come to attain absolute harmony. There is no conflict in him,
there is a reign of absolute peace. And his consciousness is
supreme, nothing is above it – no instinct, no intellect, nothing is
higher than his consciousness.”

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 275
[A. K. SIKRI, J.]

104. Historically, a transition has taken place into the idea of dignity A
by transforming the amalgam of theological approach (man as creation
of God deserving dignity) and philosophical approach based on morality,
by elevating human dignity as a constitutional norm attaching constitutional
value to it. It is a transition from ‘respect’ to ‘right’ by making respect
as enforceable right. The manner in which it has happened in India has
B
been traced above.
105. From the aforesaid discussion, it follows that dignity as a
jurisprudential concept has now been well defined by this Court. Its
essential ingredients can be summarised as under:
The basic principle of dignity and freedom of the individual is an C
attribute of natural law which becomes the right of all individuals in a
constitutional democracy. Dignity has a central normative role as well
as constitutional value. This normative role is performed in three ways:
First, it becomes basis for constitutional rights;
Second, it serves as an interpretative principle for determining D
the scope of constitutional rights; and,
Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a constitutional
right and such limitation is disproportionate, such a statute can be held to
be unconstitutional by applying the doctrine of proportionality. E
106. As per Dworkin, there are two principles about the concept
of human dignity. First principle regards an ‘intrinsic value’ of every
person, namely, every person has a special objective value, which value
is not only important to that person alone but success or failure of the
lives of every person is important to all of us. It can also be described as F
self respect which represents the free will of the person, her capacity to
think for herself and to control her own life. The second principle is that
of ‘personal responsibility’, which means every person has the
responsibility for success in her own life and, therefore, she must use
her discretion regarding the way of life that will be successful from her
G
point of view.
107. Sum total of this exposition is well defined by Professor Baxi
by explaining that as per the aforesaid view, dignity is to be treated as
‘empowerment’ which makes a triple demand in the name of ‘respect’
for human dignity, namely:
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276 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (i) respect for one’s capacity as an agent to make one’s own free
choices;
(ii) respect for the choices so made; and
(iii) respect for one’s need to have a context and conditions in
which one can operate as a source of free and informed choice.
B
108. In this entire formulation, ‘respect’ for an individual is the
fulcrum, which is based on the principle of freedom and capacity to
make choices and a good or just social order is one which respects
dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free
and informed choice’.
C
109. The aforesaid discourse on the concept of human dignity is
from an individual point of view. That is the emphasis of the petitioners
as well. That would be one side of the coin. A very important feature
which the present case has brought into focus is another dimension of
human dignity, namely, in the form of ‘common good’ or ‘public good’.
D Thus, our endeavour here is to give richer and more nuanced
understanding to the concept of human dignity. Here, dignity is not limited
to an individual and is to be seen in an individualistic way. A reflection
on this facet of human dignity was stated in National Legal Services
Authority (Transgenders’ case), which can be discerned from the
E following discussion:
“103. A corollary of this development is that while so long the
negative language of Article 21 and use of the word “deprived”
was supposed to impose upon the State the negative duty not to
interfere with the life or liberty of an individual without the sanction
F of law, the width and amplitude of this provision has now imposed
a positive obligation (Vincent Panikurlangara v. Union of India)
upon the State to take steps for ensuring to the individual a better
enjoyment of his life and dignity e.g.:
(i) Maintenance and improvement of public health (Vincent
Panikurlangara v. Union of India).
G
(ii) Elimination of water and air pollution (M.C. Mehta v. Union
of India).
(iii) Improvement of means of communication (State of H.P. v.
Umed Ram Sharma).
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 277
[A. K. SIKRI, J.]

(iv) Rehabilitation of bonded labourers (Bandhua Mukti Morcha A

v. Union of India).
(v) Providing human conditions in prisons (Sher Singh v. State of
Punjab) and protective homes (Sheela Barse v. Union of India).
(vi) Providing hygienic condition in a slaughterhouse (Buffalo
Traders Welfare Assn. v. Maneka Gandhi). B

104. The common golden thread which passes through all these
pronouncements is that Article 21 guarantees enjoyment of life
by all citizens of this country with dignity, viewing this human right
in terms of human development.
C
105. The concepts of justice social, economic and political, equality
of status and of opportunity and of assuring dignity of the individual
incorporated in the Preamble, clearly recognise the right of one
and all amongst the citizens of these basic essentials designed to
flower the citizen’s personality to its fullest. The concept of equality
helps the citizens in reaching their highest potential. Thus, the D
emphasis is on the development of an individual in all respects.”
110. Christopher McCrudden, an Oxford Academic, in his article
‘Human Dignity and Judicial Interpretation of Human Rights’ 47
published in the European Journal of International Law on September
01, 2008 traces the evolution of concept of human dignity. In substance, E
his analysis is that in the early stages of social evolution, human dignity
was understood as a concept associated with ‘status’. Only those
individuals were considered worthy of respect who enjoyed a certain
status within the social construct. Though one finds statements about
dignity of humans as human beings on account of the human being the F
highest creation of God and his possession of mind and the power of
reason in the Oration of Marcus Tullius Cicero, a Roman Politician and
Philosopher (63 BC), and in the works of Pico della Mirandola, a
Reformation Humanist (1486) ‘On the dignity of man’, yet there existed
human beings who were not considered as human beings. There were
slaves who were treated at par with animals. G
111. Kant expounded the theory that humans should be treated as
an end in themselves and not merely as a means to an end with ability to
choose their destiny. Emphasis was laid on the intrinsic worth of the
47
Published in the European Journal of International Law on September 01, 2008
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278 SUPREME COURT REPORTS [2018] 8 S.C.R.

A human being. Based on this philosophy emerged the initial declaration

of rights. Kant wrote thus:
“Humanity itself is a dignity; for a human being cannot be used
merely as a means by any human being (...) but must always be
used at the same time as an end. It is just in this that his dignity
B (personality) consists, by which he raises himself above all other
beings in the world that are not human beings and yet can be
used, and so overall things.”
112. Charles Bernard Renouvier, a French Philosopher, said:
“Republic is a State which best reconciles dignity of individual
C with dignity of everyone.”
113. Dignity extended to all citizens involves the idea of
communitarism. A little earlier in 1798, Friedrich Schiller, a German poet
of freedom and philosophy, brought out the connection between dignity
and social condition in his work “Wurde des Menschen”. He said “(g)ive
D him food and shelter; when you have covered his nakedness, dignity will
follow by itself.” It was during the period that abolition of slavery became
an important political agenda. Slavery was considered as an affront to
human dignity.
114. The Universal Declaration of Human Rights (UDHR)
E recorded in the Preamble recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family as the
foundation of freedom, justice and peace. It included freedom from fear
and want as amongst the highest aspirations of the common people.
This is of course subject to resources of each State. But the realisation
F is contemplated through national effort and international cooperation.
Evidently, the UDHR adopts a substantive or communitarian concept of
human dignity. The realisation of intrinsic worth of every human being,
as a member of society through national efforts as an indispensable
condition has been recognised as an important human right. Truly speaking,
this is directed towards the deprived, downtrodden and have nots.
G
115. We, therefore, have to keep in mind humanistic concept of
human dignity which is to be accorded to a particular segment of the
society and, in fact, a large segment. Their human dignity is based on
the socio-economic rights that are read in to the fundamental rights, as
already discussed above.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 279
[A. K. SIKRI, J.]

116. When we read socio-economic rights into human dignity, the A

community approach also assumes importance along with individualistic
approach to human dignity. It has now been well recognised that at its
core, human dignity contains three elements, namely, intrinsic value,
autonomy and community value. These are known as core values of
human dignity. These three elements can assist in structuring legal
B
reasoning and justifying judicial choices in ‘hard cases’. It has to be
borne in mind that human dignity is a constitutional principle, rather than
free standing fundamental rights. Insofar as intrinsic value is concerned,
here human dignity is linked to the nature of being. We may give brief
description of these three contents of the idea of human dignity as below:
(I) Intrinsic Value: C

The uniqueness of human kind is the product of a combination of

inherent traits and features – including intelligence, sensibility, and the
ability to communicate – that give humans a special status in the world,
distinct from other species.48 The intrinsic value of all individuals results
in two basic postulates: anti-utilitarian and anti-authoritarian. The former D
consists of the formulation of Kant’s categorical imperative that every
individual is an end in him or herself, not a means for collective goals or
the purposes of others. The latter is synthesized in the idea that the
State exists for the individual, not the other way around. As for its legal
implications, intrinsic value is the origin of a set of fundamental rights. E
The first of these rights is the right to life, a basic precondition for the
enjoyment of any other right. A second right directly related to the
intrinsic value of each and every individual is equality before and under
the law. All individuals are of equal value and, therefore, deserve equal
respect and concern. This means not being discriminated against due to
race, colour, ethnic or national origin, sex, age or mental capacity (the F
right to non-discrimination), as well as respect for cultural, religious, or
linguistic diversity (the right to recognition). Human dignity fulfills only
part of the content of the idea of equality, and in many situations it may
be acceptable to differentiate among people. In the contemporary world,
this is particularly at issue in cases involving affirmative action and the G
rights of religious minorities. Intrinsic value also leads to the right to
integrity, both physical and mental. The right to physical integrity includes
the prohibition of torture, slave labour, and degrading treatment or
punishment. Discussions on life imprisonment, interrogation techniques,
48
See George Kateb, Human Dignity 5 (2011) (“[W]e can distinguish between the
dignity of every human individual and the dignity of the human species as a whole.”). H
280 SUPREME COURT REPORTS [2018] 8 S.C.R.

A and prison conditions take place within the scope of this right. The right
to mental integrity comprises the right to personal honour and image and
includes the right to privacy.
(II) Autonomy:
Autonomy is the ethical element of human dignity. It is the
B foundation of the free will of individuals, which entitles them to pursue
the ideals of living well and having a good life in their own ways. The
central notion is that of self-determination: An autonomous person
establishes the rules that will govern his or her life. Kantian conception
of autonomy is the will governed by the moral law (moral autonomy).
C Here, we are concerned with personal autonomy, which is value neutral
and means the free exercise of the will according to one’s own values,
interests, and desires. Autonomy requires the fulfillment of certain
conditions, such as reason (the mental capacity to make informed
decisions), independence (the absence of coercion, manipulation and
severe want), and choice (the actual existence of alternatives).
D Autonomy, thus, is the ability to make personal decisions and choices in
life based on one’s conception of the good, without undue external
influences. As for its legal implications, autonomy underlies a set of
fundamental rights associated with democratic constitutionalism, including
basic freedoms (private autonomy) and the right of political participation
E (public autonomy).
It would be pertinent to emphasise here that with the rise of the
welfare state, many countries in the world (and that includes India) also
consider a fundamental right to minimum living conditions (the existential
minimum) in the balancing that results into effective autonomy. Thus,
F there are three facets of autonomy, namely: private autonomy, public
autonomy and the existential minimum. Insofar as the last component is
concerned, it is also referred to as social minimum or the basic right to
the provision of adequate living conditions has its roots in right to equality
as well. In fact, equality, in a substantive sense, and especially autonomy
(both private and public), are dependent on the fact that individuals are
G “free from want,” meaning that their essential needs are satisfied. To
be free, equal, and capable of exercising responsible citizenship, individuals
must pass minimum thresholds of well-being, without which autonomy is
a mere fiction. This requires access to some essential utilities, such as
basic education and health care services, as well as some elementary
H necessities, such as food, water, clothing, and shelter. The existential
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 281
[A. K. SIKRI, J.]

minimum, therefore, is the core content of social and economic rights. A

This concept of minimum social right is protected by the Court, time and
again.
(III) Community Value:
This element of human dignity as community value relates to the
social dimension of dignity. The contours of human dignity are shaped B
by the relationship of the individual with others, as well as with the world
around him. English poet John Donne expresses the same sentiments
when he says ‘no man is an island, entire of itself’49. The individual,
thus, lives within himself, within a community, and within a state. His
personal autonomy is constrained by the values, rights, and morals of C
people who are just as free and equal as him, as well as by coercive
regulation. Robert Post identified three distinct forms of social order:
community (a “shared world of common faith and fate”), management
(the instrumental organization of social life through law to achieve specific
objectives), and democracy (an arrangement that embodies the purpose
of individual and collective self-determination. These three forms of D
social order presuppose and depend on each other, but are also in constant
tension.
Dignity as a community value, therefore, emphasises the role of
the state and community in establishing collective goals and restrictions
on individual freedoms and rights on behalf of a certain idea of the good E
life. The relevant question here is in what circumstances and to what
degree should these actions be regarded as legitimate in a constitutional
democracy? The liberal predicament that the state must be neutral with
regard to different conceptions of the good in a plural society is not
incompatible, of course, with limitation resulting from the necessary F
coexistence of different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a legitimate idea
of justice, an “overlapping consensus”50 that can be shared by most
individuals and groups. Whenever such tension arises, the task of balancing
is to be achieved by the Courts.
G
We would like to highlight one more significant feature which the
issues involved in the present case bring about. It is the balancing of
49
See John Donne, XVII. Mediation, in Devotions upon Emergent Occasions 107,
108-09 (Uyniv. Of Mich. Press 1959) (1624)
50
“Overlapping consensus” is a term coined by John Rawls that identifies basic ideas
of justice that can be shared by supporters of different religious, political, and
H
moral comprehensive doctrines.
282 SUPREME COURT REPORTS [2018] 8 S.C.R.

A two facets of dignity of the same individual. Whereas, on the one hand,
right of personal autonomy is a part of dignity (and right to privacy),
another part of dignity of the same individual is to lead a dignified life as
well (which is again a facet of Article 21 of the Constitution). Therefore,
in a scenario where the State is coming out with welfare schemes, which
strive at giving dignified life in harmony with human dignity and in the
B
process some aspect of autonomy is sacrificed, the balancing of the two
becomes an important task which is to be achieved by the Courts. For,
there cannot be undue intrusion into the autonomy on the pretext of
conferment of economic benefits. Precisely, this very exercise of
balancing is undertaken by the Court in resolving the complex issues
C raised in the petitions.
Doctrine of Proportionality:
117. As noted above, whenever challenge is laid to an action of
the State on the ground that it violates the right to privacy, the action of
the State is to be tested on the following parameters:
D
(a) the action must be sanctioned by law;
(b) the proposed action must be necessary in a democratic society
for a legitimate aim; and
(c) the extent of such interference must be proportionate to the
E need for such interference.
118. Doctrine of proportionality was explained by the Constitution
Bench judgment of this Court in Modern Dental College and Research
Centre & Ors. v. State of Madhya Pradesh & Ors.51. In the first
instance, therefore, it would be apt to reproduce the said discussion:
F
“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
G 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 right by a
law to be constitutionally permissible. According to Aharon Barak
51
(2016) 7 SCC 353
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 283
[A. K. SIKRI, J.]

(former Chief Justice, Supreme Court of Israel), there are four A

sub-components of proportionality which need to be satisfied
[Aharon Barak, Proportionality: Constitutional Rights and
Their Limitation (Cambridge University Press 2012)], a limitation
of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose; B
(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 C

(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.
D
61. Modern theory of constitutional rights draws a fundamental
distinction between the scope of the constitutional rights, and the
extent of its protection. Insofar as the scope of constitutional rights
is concerned, it marks the outer boundaries of the said rights and
defines its contents. The extent of its protection prescribes the
limitations on the exercises of the rights within its scope. In that E
sense, it defines the justification for limitations that can be imposed
on such a right.
62. It is now almost accepted that there are no absolute
constitutional rights [ Though, debate on this vexed issue still
continues and some constitutional experts claim that there are F
certain rights, albeit very few, which can still be treated as
“absolute”. Examples given are:(a) Right to human dignity which
is inviolable,(b) Right not to be subjected to torture or to inhuman
or degrading treatment or punishment. Even in respect of such
rights, there is a thinking that in larger public interest, the extent of
G
their protection can be diminished. However, so far such attempts
of the States have been thwarted by the judiciary.] and all such
rights are related. As per the analysis of Aharon Barak [Aharon
Barak, Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012).] , two key
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284 SUPREME COURT REPORTS [2018] 8 S.C.R.

A elements in developing the modern constitutional theory of

recognising positive constitutional rights along with its limitations
are the notions of democracy and the rule of law. Thus, the
requirement of proportional limitations of constitutional rights by a
sub-constitutional law i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as the
B
Indian Constitution is concerned, democracy is treated as the basic
feature of the Constitution and is specifically accorded a
constitutional status that is recognised in the Preamble of the
Constitution itself. It is also unerringly accepted that this notion of
democracy includes human rights which is the cornerstone of
C Indian democracy. Once we accept the aforesaid theory (and
there cannot be any denial thereof), as a fortiori, it has also to be
accepted that democracy is based on a balance between
constitutional rights and the public interests. In fact, such a provision
in Article 19 itself on the one hand guarantees some certain
freedoms in clause (1) of Article 19 and at the same time empowers
D
the State to impose reasonable restrictions on those freedoms in
public interest. This notion accepts the modern constitutional theory
that the constitutional rights are related. This relativity means that
a constitutional licence to limit those rights is granted where such
a limitation will be justified to protect public interest or the rights
E of others. This phenomenon—of both the right and its limitation in
the Constitution—exemplifies the inherent tension between
democracy’s two fundamental elements. On the one hand is the
right’s element, which constitutes a fundamental component of
substantive democracy; on the other hand is the people element,
limiting those very rights through their representatives. These two
F
constitute a fundamental component of the notion of democracy,
though this time in its formal aspect. How can this tension be
resolved? The answer is that this tension is not resolved by
eliminating the “losing” facet from the Constitution. Rather, the
tension is resolved by way of a proper balancing of the competing
G principles. This is one of the expressions of the multi-faceted nature
of democracy. Indeed, the inherent tension between democracy’s
different facets is a “constructive tension”. It enables each facet
to develop while harmoniously coexisting with the others. The
best way to achieve this peaceful coexistence is through balancing
between the competing interests. Such balancing enables each
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 285
[A. K. SIKRI, J.]

facet to develop alongside the other facets, not in their place. This A
tension between the two fundamental aspects—rights on the one
hand and its limitation on the other hand—is to be resolved by
balancing the two so that they harmoniously coexist with each
other. This balancing is to be done keeping in mind the relative
social values of each competitive aspects when considered in
B
proper context.
63. In this direction, the next question that arises is as to what
criteria is to be adopted for a proper balance between the two
facets viz. the rights and limitations imposed upon it by a statute.
Here comes the concept of “proportionality”, which is a proper
criterion. To put it pithily, when a law limits a constitutional right, C
such a limitation is constitutional if it is proportional. 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. This essence of doctrine of proportionality D
is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes
[R. v. Oakes, (1986) 1 SCR 103 (Can SC)] , in the following
words (at p. 138):
‘To establish that a limit is reasonable and demonstrably justified
in a free and democratic society, two central criteria must be E
satisfied. First, the objective, which the measures, responsible
for a limit on a Charter right or freedom are designed to serve,
must be “of” sufficient importance to warrant overriding a
constitutional protected right or freedom … Second … the party
invoking Section 1 must show that the means chosen are
reasonable and demonstrably justified. This involves “a form F
of proportionality test…” Although the nature of the
proportionality test will vary depending on the circumstances,
in each case courts will be required to balance the interests of
society with those of individuals and groups. There are, in my
view, three important components of a proportionality test. First, G
the measures adopted must be … rationally connected to the
objective. Second, the means … should impair “as little as
possible” the right or freedom in question … Third, there must
be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and
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286 SUPREME COURT REPORTS [2018] 8 S.C.R.

A the objective which has been identified as of “sufficient

importance”. The more severe the deleterious effects of a
measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified in a
free and democratic society.’
B 64. The exercise which, therefore, is 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.
C
65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined in Article
19 itself when we read clause (1) along with clause (6) thereof.
While defining as to what constitutes a reasonable restriction, this
Court in a plethora of judgments has held that the expression
D “reasonable restriction” seeks to strike a balance between the
freedom guaranteed by any of the sub-clauses of clause (1) of
Article 19 and the social control permitted by any of the clauses
(2) to (6). It is held that the expression “reasonable” connotes
that the limitation imposed on a person in the enjoyment of the
E right should not be arbitrary or of an excessive nature beyond
what is required in the interests of public. Further, in order to be
reasonable, the restriction must have a reasonable relation to the
object which the legislation seeks to achieve, and must not go in
excess of that object (see P.P. Enterprises v. Union of India).
At the same time, reasonableness of a restriction has to be
F determined in an objective manner and from the standpoint of the
interests of the general public and not from the point of view of
the persons upon whom the restrictions are imposed or upon
abstract considerations (see Mohd. Hanif Quareshi v. State of
Bihar). In M.R.F. Ltd. v. State of Kerala, this Court held that in
G examining the reasonableness of a statutory provision one has to
keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature
so as to go beyond the requirement of the interest of the general
H public.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 287
[A. K. SIKRI, J.]

(3) In order to judge the reasonableness of the restrictions, no A

abstract or general pattern or a fixed principle can be laid down
so as to be of universal application and the same will vary from
case to case as also with regard to changing conditions, values of
human life, social philosophy of the Constitution, prevailing
conditions and the surrounding circumstances.
B
(4) A just balance has to be struck between the restrictions imposed
and the social control envisaged by Article 19(6).
5) Prevailing social values as also social needs which are intended
to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable C
connection between the restrictions imposed and the object sought
to be achieved. If there is a direct nexus between the restrictions,
and the object of the Act, then a strong presumption in favour of
the constitutionality of the Act will naturally arise.”
(emphasis in original) D
119. We may note at this stage that there is a growing awareness
of the practical importance of the principle of proportionality for rights
adjudication and it has sparked a wave of academic scholarship as well.
The first integrates the doctrine of proportionality into a broader
theoretical framework. It is propounded by Robert Alexy, premised on E
the theory of rights as principles and optimisation requirements52. For
Alexy, all norms are either rules or principles. Constitutional rights are
principles, which means that they must be realised to the greatest extent
factually and legally possible. For Alexy, the principle of proportionality
follows logically from the nature of constitutional rights as principles. F
On the other hand, Mattias Kumm presented his theory of rights
adjudication as Socratic contestation, with proportionality principle at its
centre. As per Kumm, proportionality is the doctrinal tool which allows
Judges to assess the reasonableness or plausibility, of a policy and thus
to determine whether it survives Socratic contestation53. Recently, Kai
52
Robert Alexy, A Theory of Constitutional Rights, (Oxford, Oxford University Press, G
2002)
54
M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The
Point and Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics
of Human Rights 141; M Kumm, ‘Institutionalising Socratic Contestation: The
Rationalist Human Rights Paradigm, Legitimate Authority and the point of Judicial
Review’ (2007) 1 European Journal of Legal Studies.
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288 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Moller has proposed another theory, which is an autonomy-based theory

of what he calls ‘the global model of constitutional rights’, at the core of
which lies the obligation of the State to take the autonomy interests of
every person adequately into account54. In this process, his understanding
of autonomy leads to one consequence, viz., there will often be conflicts
of autonomy interests, which have to be resolved in line with each agent’s
B
status as an equal. Here, the proportionality principle becomes the
doctrinal tool which guides Judges through the process of resolving those
conflicts.
One thing is clear from the above, i.e. jurisprudential explanations
of proportionality principle. There may be some differences about the
C approach on the application of proportionality doctrine, it is certain that
proportionality has become the lingua franca of judicial systems across
borders, concerning the circumstances under which it is appropriate to
limit fundamental rights.
120. The proportionality test which is stated in the aforesaid
D judgment, accepting Justice Barak’s conceptualisation, essentially takes
the version which is used by the German Federal Constitutional Court
and is also accepted by most theorists of proportionality. According to
this test, a measure restricting a right must, first, serve a legitimate goal
(legitimate goal stage); it must, secondly, be a suitable means of furthering
E this goal (suitability or rational connection stage); thirdly, there must not
be any less restrictive but equally effective alternative (necessity stage);
and fourthly, the measure must not have a disproportionate impact on
the right-holder (balancing stage).
121. Many issues arise while undertaking the exercise of
F proportionality inquiry. At legitimate goal stage, question arises as to
what does it mean to speak of the goal of a policy, and what does it
mean to require a goal to be legitimate?55 With regard to the suitability
and necessity stages, some of the open issues are how to deal with
empirical uncertainty: should this lead to wide-ranging deference to the
54
K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University
G Press, 2012).
55
On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the
Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in
Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy
(Oxford, Hart Publishing, 2007) 131; Moller, the Global Model of Constitutional
Rights (Oxford, Oxford University Press, 2012) ch 7.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 289
[A. K. SIKRI, J.]

elected branches?56 At the balancing stage, we have to ask the question A

of what it means to say that a right is ‘balanced’ against a competing
right or public interest. One remarkable feature of the German test is
that it tends to push most of the important issues into the last stage, viz.,
the balancing stage. At the legitimate goal stage, any goal that is legitimate
will be accepted. At the suitability stage, even a marginal contribution to
B
the achievement of the goal will suffice. At the necessity stage, it is very
rare for a policy to fail because less restrictive alternatives normally
come with some disadvantage and cannot, therefore, be considered
equally effective. Thus, the balancing stage dominates the legal analysis
and is usually determinative of the outcome.
122. In contrast, Canadian Supreme Court has chartered different C
course while using proportionality test. R. v. Oakes57 (popularly known
as Oakes test), has held that the objective must be ‘of sufficient importance
to warrant overriding a constitutionally protected right or freedom’; there
must be a rational connection between measure and objective; the means
must ‘impair “as little as possible” the right or freedom in question’; and D
finally, ‘there must be a proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient importance”’.
Under this test, arguably more issues are addressed at the earlier stages.
Instead of accepting any legitimate goal, Oakes requires a goal ‘of
sufficient importance to warrant overriding a constitutionally protected E
right or freedom’. And the minimal impairment test is different from the
German necessity test both in the way in which it is formulated (there is
no requirement that the less restrictive measure be equally effective)
and in the way it is applied in practice: the Canadian Supreme Court
tends to resolve cases at that stage and not, as the German Federal F
Constitutional Court, at the balancing stage.
123. There is a great debate as to which out of the aforesaid two
approaches is a better approach. Some jurists are of the view that the
proper application of the German test leads to a practice of constitutional
review with two connected problems: first, as pointed about above, usually G
almost all the moral work is done at the balancing stage, arguably rendering
the earlier stages largely useless and throwing doubt on the truth of the
56
As a proposal of how to deal with uncertainty, see Alexy’s ‘Second Law of Balancing’,
which he proposes in the Postscript to A Theory of Constitutional Rights (Oxford,
Oxford University Press, 2002).
57
(1986) 1 SCR 103 H
290 SUPREME COURT REPORTS [2018] 8 S.C.R.

A popular argument that proportionality is a valuable doctrine partly because

it structures the analysis of rights issues in a meaningful way. Secondly,
the balancing act at the final stage is often carried out in an impressionistic
fashion which seems to be largely unguided by principle and thus opens
the door for subjective, arbitrary and unpredictable judgments encroaching
on what ought to be the proper domain of the democratic legislature.
B
These concerns can, however, be addressed. According to Bilchitz58,
first concern can be addressed by focusing on the necessity stage of the
test. He takes issue with both the German test – according to which
almost all policies are necessary because any alternative policy will usually
have some disadvantage which means that it cannot be considered equally
C effective – and the Canadian minimal impairment test – which, taken
seriously, narrows down the range of constitutionally acceptable policies
far too much: ‘minimal impairment’ can be read as insisting that only one
measure could pass constitutional scrutiny, namely the measure which
impairs the right least.59 So the alternatives seem to be either to construct
the necessity (minimal impairment) test as filtering out almost nothing or
D
to allow only one policy, thus rendering the elected branches partly
superfluous. In order to preserve a meaningful but not unduly strict role
for the necessity stage, Bilchitz proposes the following inquiry. First, a
range of possible alternatives to the measure employed by the
Government must be identified. Secondly, the effectiveness of these
E measures must be determined individually; the test here is not whether
each respective measure realises the governmental objective to the same
extent, but rather whether it realises it in a ‘real and substantial manner’.
Thirdly, the impact of the respective measures on the right at stake must
be determined. Finally, an overall judgment must be made as to whether
in light of the findings of the previous steps, there exists an alternative
F
which is preferable; and this judgment will go beyond the strict means-
ends assessment favoured by Grimm and the German version of the
proportionality test; it will also require a form of balancing to be carried
out at the necessity stage.
124. Insofar as second problem in German test is concerned, it
G can be taken care of by avoiding ‘ad-hoc balancing’ and instead
58
‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing,
Oxford and Portland, Oregon, 2016.
59
On the various problems which the Canadian Supreme Court created for itself because
of its early unfortunate statements on proportionality see S Choudhry, ‘So What Is
the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the
H Canadian Charter’s Section 1’ (2006) 34 Supreme Court Law Review 501.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 291
[A. K. SIKRI, J.]

proceeding on some ‘bright-line rules’ i.e. by doing the act of balancing A

on the basis of some established rule or by creating a sound rule. We
may point out that whereas Chandrachud, J. has formulated the test of
‘legitimate state interest’, other two of the Judges, namely, Chelameswar
and Sapre, JJ. have used the test of ‘compelling state interest’ and not
‘legitimate state interest’. On the other hand, S.K. Kaul, J. has held that
B
the test to be applied is whether the law satisfies ‘public interest’.
Nariman, J., on the other hand, pointed out that the Right to Information
Act, 2005 has provided for personal information being disclosed to third
parties subject to ‘larger public interest’ being satisfied. If this test is
applied, the result is that one would be entitled to invoke ‘large public
interest’ in lieu of ‘legitimate state aim’ or ‘legitimate state interest’, as a C
permissible restriction on a claim to privacy of an individual – a more
lenient test. However, since judgment of Chandrachud, J. is on behalf
of himself and three other Judges and S.K. Kaul, J. has also virtually
adopted the same test, we can safely adopt the test of ‘legitimate state
interest’ as the majority opinion, instead of applying the test of ‘compelling
D
state interest’.
125. In Modern Dental College & Research Centre, four sub
components or proportionality which need to be satisfied were taken
note of. These are:
(a) A measure restricting a right must have a legitimate goal E
(legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
(c) There must not be any less restrictive but equally effective
alternative (necessity stage). F
(d) The measure must not have a disproportionate impact on the
right holder (balancing stage).
126. This has been approved in K.S. Puttaswamy as well.
Therefore, the aforesaid stages of proportionality can be looked into and
G
discussed. Of course, while undertaking this exercise it has also to be
seen that the legitimate goal must be of sufficient importance to warrant
overriding a constitutionally protected right or freedom and also that
such a right impairs freedom as little as possible. This Court, in its
earlier judgments, applied German approach while applying proportionality
H
292 SUPREME COURT REPORTS [2018] 8 S.C.R.

A test to the case at hand. We would like to proceed on that very basis
which, however, is tempered with more nuanced approach as suggested
by Bilchitz. This, in fact, is the amalgam of German and Canadian
approach. We feel that the stages, as mentioned in Modern Dental
College & Research Centre and recapitulated above, would be the
safe method in undertaking this exercise, with focus on the parameters
B
as suggested by Bilchitz, as this projects an ideal approach that need to
be adopted.
Issues:
127. After setting the tone of the case, it is now time to specify
C the precise issues which are involved that need to be decided in these
matters:
(1) Whether the Aadhaar Project creates or has tendency to create
surveillance state and is, thus, unconstitutional on this ground?
(a) What is the magnitude of protection that needs to be
D accorded to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such
protection, including in respect of data minimisation, purpose
limitation, time period for data retention and data protection
and security?
E
(2) Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?
{This issue is considered in the context of Sections 7 and 8 of
the Aadhaar Act. Incidental issue of ‘Exclusion’ is also
considered here}
F
(3) Whether children can be brought within the sweep of Sections
7 and 8 of the Aadhaar Act?
(4) Whether the following provisions of the Aadhaar Act and
Regulations suffer from the vice of unconstitutionality:
G (i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 293
[A. K. SIKRI, J.]

(v) Section 3 A
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9 B
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI & VII – Regulations
27 to 32 C
(xiii) Section 29
(xiv) Section 33
(xv) Section 47
(xvi) Section 48 D
(xvii) Section 57
(xviii) Section 59
(5) Whether the Aadhaar Act defies the concept of Limited
Government, Good Governance and Constitutional Trust? E
(6) Whether the Aadhaar Act could be passed as ‘Money Bill’
within the meaning of Article 110 of the Constitution?
(7) Whether Section 139AA of the Income Tax Act, 1961 is violative
of right to privacy and is, therefore, unconstitutional?
F
(8) Whether Rule 9(a)(17) of the Prevention of Money Laundering
(Maintenance of Records) Rules, 2005 and the notifications
issued thereunder, which mandate linking of Aadhaar with bank
accounts, are unconstitutional?
(9) Whether Circular dated March 23, 2017 issued by the G
Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?
(10) Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so,
the effect thereof?
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294 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 128. We now proceed to discuss the arguments on these grounds,

as advanced by the petitioners, reply thereto and our conclusions
thereupon.
Surveillance:
Whether the Aadhaar Project creates or has tendency to create
B surveillance state and is, thus, unconstitutional on this
ground?
Education took us from thumb impression to signature
Technology has taken us from signature to thumb impression,
C again
129. It may be remarked at the outset that the argument of
surveillance draws sustenance, to a larger extent, from privacy rights as
well. Therefore, the arguments which were addressed under this caption
have traces of privacy also. However, these are discussed in the context
D of surveillance state argument.
130. It was submitted that Aadhaar project creates the architecture
of a ‘cradle to grave’ surveillance state and society. This means that it
enables the State to profile citizens, track their movements, assess their
habits and silently influence their behaviour throughout their lives. Over
time, the profiling enables the State to stifle dissent and influence political
E
decision making. The architecture of the project comprises a Central
Identities Data Repository which stores and maintains authentication
transaction data. The authentication record comprises the time of
authentication and the identity of the requesting entity. The UIDAI and
the Authentication Service Agency (ASA) is permitted to store this
F authentication record for 2 + 5 years (as per Regulations 20 and 26/27
of the Authentication Regulations). Based on this architecture it is possible
for the State to track down the location of the person seeking
authentication. Since the requesting entity is also identified, the activity
that the citizen is engaging in is also known. (Sections 2(d), 2(h), 8, 10,
32 of the Act read with Regulations 18, 20, 26 of the Aadhaar
G
(Authentication) Regulation, 2016).
131. According to the petitioners, the Authority has the following
information (according to the document on technical specification of
Aadhaar registered devices published by the Authority in February 2017)
– Aadhaar number, name of Aadhaar holder, whether authentication
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 295
[A. K. SIKRI, J.]

failed or was successful, reason for such failure, requesting entities’ A

Internet Protocol (IP) address, date and time of authentication, device
ID and its unique ID of authentication device which can be used to
locate the individual.
132. Authentication of Aadhaar number enables tracking, tagging
and profiling of individuals as the IP Address of the authentication device B
gives an idea of its geographical location (determinable within the range
of 2 kilometres), country, city, region, pin code/zip code). Mr. Divan
submits that an individual is on an electronic leash, tethered to a central
data repository that has the architecture to track all activities of an
individual. The Aadhaar Act creates a database of all Indian residents
and citizens with their core biometric information, demographic information C
and meta data. In light of the enormous potential of information,
concentration of information in a single entity, i.e., the Authority, enabling
easier access to aggregated information puts the State in a position to
wield enormous power. Given that with advancements in technology,
such information can affect every aspect of an individual’s personal, D
professional, religious and social life, such power is a threat to individual
freedoms guaranteed under Articles 19(1)(a) to 19(1)(g) of the
Constitution and other fundamental rights guaranteed under Article 21
(Right to informational privacy) and Article 25 of the Constitution. It
was submitted that the Aadhaar Act treats the entire populace of the
country as potential criminals ignoring the necessity to balance the State’s E
mandate of protection against crime with the right to personal bodily
integrity which is envisaged under Article 21 read with Article 20(3) of
the Constitution. It does not require the collection of data to have a
nexus with a crime. Mr. Sibal submits that in the decision in Selvi &
Ors. v. State of Karnataka60, this Court has held: F
“The theory of interrelationship of rights mandates that the right
against self-incrimination should also be read as a component of
“personal liberty” under Article 21. Hence, our understanding of
the “right to privacy” should account for its intersection with Article
20(3)” G
133. It is argued that the Aadhaar Act, therefore, violates the
right to protection from self-incrimination, and the right to privacy and
personal dignity/bodily integrity under Article 20(3) and Article 21.
60
(2010) 7 SCC 263
H
296 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 134. It was argued that the Constitution of India repudiates mass

surveillance as enabled by Aadhaar and the project ought to be struck
down on this ground alone. There is no question of balancing or
justification in case of a surveillance architecture.
135. Passages from various judgments were quoted in an attempt
B to establish that surveillance causes interference with right to privacy,
life and liberty. From Kharak Singh v. State of U.P.61, dissenting opinion
of Subba Rao, J. (which has been upheld in K.S. Puttaswamy) was
relied upon. With respect to how surveillance constricts right to life and
liberty, His Lordship held that:
C “Now let us consider the scope of Article 21. The expression
“life” used in that Article cannot be confined only to the taking
away of life, i.e., causing death. In Munn v. Illinois (1), Field, J.,
defined “life” in the following words:
“Something more than mere animal existence. The inhibition
D against its deprivation extends to all those limbs and faculties
by which life is enjoyed. The provision equally prohibits the
mutilation of the body by the amputation of an arm or leg, or
the putting out of an eye, or the destruction of any other organ
of the body through which the soul communicates with the
outer world. The expression “‘liberty” is given a very wide
E meaning in America. It takes in all the freedoms. In Bolling v.
Sharpe (2), the Supreme Court of America observed that the
said expression was not confined to mere freedom from bodily
restraint and that liberty under law extended to the full range
of conduct which the individual was free to pursue. But this
F absolute right to liberty was regulated to protect other social
interests by the State exercising its powers such as police
power, the power of eminent domain, the power of taxation
etc. The proper exercise of the power which is called the due
process of law is controlled by the Supreme Court of America.
In India the word “liberty” has been qualified by the word
G “Personal”, indicating thereby that it is confined only to the
liberty of the person. The other aspects of the liberty have
been provided for in other Articles of the Constitution
xx xx xx
61
(1964) 1 SCR 332
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 297
[A. K. SIKRI, J.]

It is true our Constitution does not expressly declare a right to A

privacy as a fundamental right, but the said right is an essential
ingredient of personal liberty. Every democratic country
sanctifies domestic life; it is expected to give him rest, physical
happiness, peace of mind and security. In the last resort, a
person’s house, where he lives with his family, is his “castle”;
B
it is his rampart against encroachment on his personal liberty.
The pregnant words of that famous Judge, Frankfurter J., in
Wolf v. Colorado [[1949] 238 US 25] pointing out the importance
of the security of one’s privacy against arbitrary intrusion by
the police, could have no less application to an Indian home as
to an American one. If physical restraints on a person’s C
movements affect his personal liberty, physical encroachments
on his private life would affect it in a larger degree. Indeed,
nothing is more deleterious to a man’s physical happiness and
health than a calculated interference with his privacy. We would,
therefore, define the right of personal liberty in Article 21 as a
D
right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or
encroachments are directly imposed or indirectly brought about
by calculated measures.
xx xx xx
E
The freedom of movement in clause (d) of Article 19 therefore
must be a movement in a free country i.e. in a country where
he can do whatever he likes, speak to whomsoever he wants,
meet people of his own choice without any apprehension,
subject of course to the law of social control. The petitioner
under the shadow of surveillance is certainly deprived of this F
freedom. He can move physically, but he cannot do so freely,
for all his activities are watched and noted. The shroud of
surveillance cast upon him perforce engender inhibitions in him
and he cannot act freely as he would like to do. “
136. In the case of District Registrar and Collector, Hyderabad G
and Anr. v. Canara Bank and Ors.62, this Court struck down provisions
of a legislation on grounds that it was too intrusive of citizens’ right to
privacy. The case involved an evaluation of the Andhra Pradesh Stamp
Act which authorized the collector to delegate “any person” to enter
62
(2005) 1 SCC 496 H
298 SUPREME COURT REPORTS [2018] 8 S.C.R.

A any premises in order to search for and impound any document that was
found to be improperly stamped. After an exhaustive analysis of privacy
laws across the world, and in India, the Court held that in the absence of
any safeguards as to probable or reasonable cause or reasonable basis,
this provision was violative of the constitutionally guaranteed right to
privacy “both of the house and of the person”. The Court held:
B
“The A.P. amendment permits inspection being carried out by the
Collector by having access to the documents which are in private
custody i.e. custody other than that of a public officer. It is clear
that this provision empowers invasion of the home of the person
in whose possession the documents ‘tending’ to or leading to the
C various facts stated in sec. 73 are in existence and sec. 73 being
one without any safeguards as to probable or reasonable cause or
reasonable basis or materials violates the right to privacy both of
the house and of the person. We have already referred to R.
Rajagopal’s case wherein the learned judges have held that the
D right to personal liberty also means the life free from
encroachments unsustainable in law and such right flowing from
Article 21 of the Constitution.”
137. Reference was made to the U.S Supreme Court case of
U.S. v. Jones63 where the court held that installing a Global Positioning
System (GPS) tracking device on a vehicle and using the device to monitor
E the vehicle’s movements constitutes an unlawful search under the Fourth
Amendment. Sotomayor, J. in her concurring judgment observed that
Fourth Amendment search and seizure is not only concerned with
physical trespassory intrusions on property but also non-physical violation
of privacy that society recognizes as reasonable. She notes that GPS
F data can reveal an entire profile of a person simply by knowing the
places she visits and that the Government can mine this data in the
future:
“With increasing regularity, the Government will be capable of
duplicating the monitoring undertaken in this case by enlisting
factory or owner-installed vehicle tracking devises or GPS enabled
G
smart-phones … In cases of electronic or other novel modes of
surveillance that do not depend upon a physical invasion on
property, the trespassory test may provide little guidance.
xx xx xx
63
H 132 S.Ct. 945 (2012)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 299
[A. K. SIKRI, J.]

GPS monitoring generates a precise, comprehensive record of a A

person’s public movements that reflects a wealth of detail about
her familial, political, professional, religious, and sexual associations
… disclosed GPS data will be trips to the psychiatrist, plastic
surgeon, abortion clinic, AIDS treatment centre, strip club, criminal
defence attorney …
B
Government can store such records and efficiently mine them for
information years into the future… awareness that the government
may be watching chills associational and expressive freedom …
it may alter the relationship between citizen and government in a
way that is inimical to democratic society.
C
xx xx xx
I would not assume that all information voluntarily disclosed to
some member of the public for a limited purpose is, for that reason
alone, disentitled to Fourth Amendment protection … (“Privacy is
not a discrete commodity, possessed absolutely or not at all. Those D
who disclose certain facts to a bank or phone company for a
limited business purpose need not assume that this information
will be released to other persons for other purposes”) ... (“[W]hat
[a person] seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected”).”
E
64
138. The judgment of the ECtHR in Zakharov v. Russia was
also referred to where the ECtHR examined an application claiming
violation of Article 8 of the Convention (right to respect for private and
family life) alleging that the mobile operators had permitted unrestricted
interception of all telephone communications by the security services
F
without prior judicial authorisation, under the prevailing national law. The
Court observed that:
“Mr Zakharov was entitled to claim to be a victim of a violation of
the European Convention, even though he was unable to allege
that he had been the subject of a concrete measure of surveillance.
G
Given the secret nature of the surveillance measures provided for
by the legislation, their broad scope (affecting all users of mobile
telephone communications) and the lack of effective means to

64
(2015) Application No. 47143/2006
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300 SUPREME COURT REPORTS [2018] 8 S.C.R.

A challenge them at national level… Russian law did not meet the
“quality of law” requirement and was incapable of keeping the
interception of communications to what was “necessary in a
democratic society”. There had accordingly been a violation of
Article 8 of the Convention… existence of arbitrary and abusive
surveillance practices, which appear to be due to inadequate
B
safeguards provided by law”.
139. The Court held that any interference with the right to privacy
under Article 8 can only be justified under Article 8(2) if it is in accordance
with law, pursues one or more legitimate aims and is necessary in a
democratic society to achieve such aim. “In accordance with the law”
C
requires the impugned measure both to have some basis in domestic law
and to be compatible with the rule of law, which is expressly mentioned
in the Preamble to the Convention and inherent in the object and purpose
of Article 8. The law must, thus, meet quality requirements: it must be
accessible to the person concerned and foreseeable as to its effects.
D With respect to foreseeability of surveillance, the court held:
“Foreseeability in the special context of secret measures of
surveillance, such as the interception of communications, cannot
mean that an individual should be able to foresee when the
authorities are likely to intercept his communications so that he
E can adapt his conduct accordingly. However, especially where a
power vested in the executive is exercised in secret, the risks of
arbitrariness are evident. It is therefore essential to have clear,
detailed rules on interception of telephone conversations, especially
as the technology available for use is continually becoming more
sophisticated. The domestic law must be sufficiently clear to give
F citizens an adequate indication as to the circumstances in which
and the conditions on which public authorities are empowered to
resort to any such measures.
xx xx xx

G Since the implementation in practice of measures of secret

surveillance of communications is not open to scrutiny by the
individuals concerned or the public at large, it would be contrary
to the rule of law for the discretion granted to the executive or to
a judge to be expressed in terms of an unfettered power.
Consequently, the law must indicate the scope of any such
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 301
[A. K. SIKRI, J.]

discretion conferred on the competent authorities and the manner A

of its exercise with sufficient clarity to give the individual adequate
protection against arbitrary interference.”
140. The Court observed that the following minimum safeguards
that should be set out in law in order to avoid abuses of power for
surveillance are: the nature of offences which may give rise to an B
interception order; a definition of the categories of people liable to have
their telephones tapped; a limit on the duration of telephone tapping; the
procedure to be followed for examining, using and storing the data
obtained; the precautions to be taken when communicating the data to
other parties; and the circumstances in which recordings may or must
be erased or destroyed. C

141. For establishing if the measures were “necessary in a

democratic society” in pursuit of a legitimate aim, the Court observed:
“When balancing the interest of the respondent State in protecting
its national security through secret surveillance measures against D
the seriousness of the interference with an applicant’s right to
respect for his or her private life, the national authorities enjoy a
certain margin of appreciation in choosing the means for achieving
the legitimate aim of protecting national security. However, this
margin is subject to European supervision embracing both
legislation and decisions applying it. In view of the risk that a E
system of secret surveillance set up to protect national security
may undermine or even destroy democracy under the cloak of
defending it, the Court must be satisfied that there are adequate
and effective guarantees against abuse. The assessment depends
on all the circumstances of the case, such as the nature, scope F
and duration of the possible measures, the grounds required for
ordering them, the authorities competent to authorise, carry out
and supervise them, and the kind of remedy provided by the national
law. The Court has to determine whether the procedures for
supervising the ordering and implementation of the restrictive
measures are such as to keep the “interference” to what is G
“necessary in a democratic society”.”
142. Two other cases of violation of Article of the European
Convention of Human Rights were cited, namely Digital Rights Ireland
65
[2014] All ER (D) 66 (Apr)
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302 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Ltd. v. Minister for Communication, Marine and Natural Resources65

and S and Marper v. United Kingdom66. In Digital Ireland, the
European Parliament and the Council of the European Union adopted
Directive 2006/24/EC (Directive), which regulated Internet Service
Providers’ storage of telecommunications data. It could be used to retain
data generated or processed in connection with the provision of publicly
B
available electronic communications services or of public communications
network for the purpose of fighting serious crime in the European Union
(EU). The data included data necessary to trace and identify the source
of communication and its destination, to identify the date, time duration,
type of communication, IP address, telephone number and other fields.
C The European Court of Justice (ECJ) evaluated the compatibility of the
Directive with Articles 7 and 8 of the Charter of Fundamental Rights of
the European Union and declared the Directive to be invalid. According
to the ECJ, the Directive interfered with the right to respect for private
life under Article 7 and with the right to the protection of personal data
under Article 8. It allowed very precise conclusion to be drawn concerning
D
the private lives of the persons whose data had been retained, such as
habits of everyday life, permanent or temporary places of residence,
daily and other movements, activities carried out, social relationships
and so on. The invasion of right was not proportionate to the legitimate
aim pursued.
E 143. In S and Marper, the storing of DNA profiles and cellular
samples of any person arrested in the United Kingdom was challenged
before the ECtHR. Even if the individual was never charged, if criminal
proceedings were discontinued, or if the person was later acquitted of
any crime, their DNA profile could nevertheless be kept permanently on
F record. It held that there had been a violation of Article 8 of the ECHR.
Fingerprints, DNA profiles and cellular samples, constituted personal
data and their retention was capable of affecting private life of an
individual. Retention of such data without consent, thus, constitutes
violation of Article 8 as they relate to identified and identifiable individuals.
The Court held that invasion of privacy was not “necessary in a democratic
G society as it did not fulfill any pressing social need. The blanket and
indiscriminate nature of retention of data was excessive and did not
strike a balance between private and public interest.
144. The respondents, on the other hand, rebutted the arguments
66
(2008) ECHR 1581
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 303
[A. K. SIKRI, J.]

of the petitioners that the architecture of the Aadhaar Act enables State A
surveillance. It was submitted that bare minimal information was obtained
from the individual who enrolled for Aadhaar. Insofar as demographic
information is concerned, it included name, date of birth, address, gender,
mobile number and email address. The latter two are optional and meant
for transmitting relevant information to the AMH and for One Time
B
Password (OTP) based authentication. This information was in respect
of an individual and is always in public domain. Section 2(k) of the
Aadhaar Act specifically provides that regulations cannot include race,
religion, caste, tribe, ethnicity, language, records of entitlement, income
or medical history. Therefore, sensitive information specifically stands
excluded. This specific exclusion, in the context, ensures that the scope C
of including additional demographic information is very narrow and
limited. It was also argued that even the biometric information was
limited to the fingerprints and iris scan, which is considered to be the
core biometric information. Such information is, again, frequently utilised
globally to ascertain the identity of a person. The argument was, thus,
D
that the information gathered was non-invasive and non-intrusive identity
information.
145. It was also argued that the very scheme of the Aadhaar and
the manner in which it operates excludes every possibility of data profiling
and, therefore, the question of State surveillance would not arise. The
powerpoint presentation which was given by Dr. Pandey, as has been E
stated above, was referred to, on the basis of which it was argued that
the Aadhaar design takes full care of security of persons.
146. It was also argued by the respondents that identity information
data resides in the CIDR which is not in the control of the Government
or the police force. The Authority is a body constituted as a body corporate F
having perpetual succession and a common seal. It is regulated by
substantive and procedural checks to protect the identity information
and authentication record. This information cannot be published, displayed
or posted publicly. It does not have the authority to carry out surveillance.
The State Governments and the police forces cannot obtain the G
information contained in the CIDR or the authentication records except
in two situations contemplated by Section 33 – (i) When the District
Judge orders so after giving an opportunity of hearing to the authority
(even in this situation core biometric information will not be shared; and
(ii) in the interest of National Security where a Joint Secretary or a
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304 SUPREME COURT REPORTS [2018] 8 S.C.R.

A superior officer of the Government of India specially authorizes in this

behalf, and in this case every direction is reviewed by an oversight
committee chaired by the Cabinet Secretary. Further, this direction is
limited for three months and extendable by a further period of 3 months.
147. It was submitted that surveillance, if at all, can only be carried
B out by unauthorised use of CIDR information, despite its statutory
prohibition and punitive injunctions or by other means such as physical
surveillance. That is, however, an illegal surveillance. The architecture
of the Act does not allow surveillance. It was submitted that the petitioners
have not made out a case of surveillance by the Authority but points out
a mere possibility of surveillance.
C
148. We may reiterate that the argument of surveillance also has
the reflections of privacy and in fact the argument is structured on the
basis that the vital information which would be available with the
Government can be utilised to create the profiling of individuals and
retention of such information in the hands of the respondents is a risky
D affair which may enable the State to do the surveillance of any individual
it wants.
149. Insofar as the aspect of privacy of individual is concerned,
that would be dealt with in detail while addressing that issue. To segregate
issue of surveillance from privacy, we are focusing the discussion to the
E aspect whether there is sufficient data available with the respondents
which may facilitate the profiling and misuse thereof or whether there
are sufficient safeguards to ward off the same. In the process, we
would be discussing the issues pertaining to data protection as well. At
the same time, there would be some overlapping of discussion inasmuch
F as it will have to be seen as to the collection, storage and use of biometric
data satisfies the proportionality principle.
150. It is clear that the argument of the petitioners is that on the
basis of the data available with the Authority, there can be a profiling of
an individual which may make the surveillance state. And such a mass
G surveillance is not permitted by the Constitution of India. The entire
foofaraw about the Aadhaar architecture is the so-called enormous
information that would be available to the Government on using Aadhaar
card by residents. Two issues arise from the respective arguments of
the parties:
(a) whether the architecture of the Aadhaar project enables the
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 305
[A. K. SIKRI, J.]

State to create a regime of surveillance?; and A

(b) whether there are adequate provisions for data protection?
151. Insofar as issue (a) above is concerned, after going through
the various aspects of the Aadhaar project, the provisions of the Aadhaar
Act and the manner in which it operates, it is difficult to accept the
argument of the petitioners. The respondents have explained that the B
enrolment and authentication processes are strongly regulated so that
data is secure. The enrolment agency, which collects the biometric and
demographic of the individuals during enrolment, is appointed either by
UIDAI or by a Registrar [Section 2(s)]. The Registrars are appointed
through MoUs or agreements for enrolment and are to abide by a code C
of conduct and processes, policies and guidelines issued by the Authority.
They are responsible for the process of enrolment. Categories of persons
eligible for appointment are limited by the Regulations. The agency
employs a certified supervisor, an operator and a verifier under Enrolment
and Update Regulations. Registrars and the enrolling agencies are obliged
to use the software provided or authorized by UIDAI for enrolment D
purpose. The standard software has security features as specified by
the Authority. All equipment used is as per the specification issued by
the Authority. The Registrars are prohibited from using the information
collected for any purpose other than uploading the information to CIDR.
Sub-contracting of enrolment function is not allowed. The Code of E
Conduct contains specific directions for following the confidentiality,
privacy and security protocols and submission of periodic reports of
enrolment. Not only there are directions prohibiting manipulation and
fraudulent practices but the Act contains penal provisions for such
violations in Chapter VII of the Regulations. The enrolment agencies
are empanelled by the Authority. They are given an enrolling agency F
code using which the Registrar can onboard such agency to the CIDR.
The enrolment data is uploaded to the Central Identities Data Repository
(CIDR) certified equipment and software with a digital signature of the
Registrar/enrolling agency. The data is encrypted immediately upon
capture. The decryption key is with the UIDAI solely. Section 2(ze) of G
the Information Technology Act, 2000 (hereinafter referred to as the
‘IT Act’) which defines ‘secure systems’ and Section 2(w) of the Act,
which defines ‘intermediaries’ apply to the process. Authentication only
becomes available through the Authentication Service Agency (ASA).
They are regulated by the Aadhaar (Authentication) Regulations, 2016.
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306 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Their role and responsibilities are provided by Regulation 19 of the

Authentication Regulations. They are to use certified devices. The
equipment or software has to be duly registered with or approved or
certified by the Authority/agency. The systems and operations are audited
by information system auditor. The requesting entities pass the encrypted
data to the CIDR through the ASA and the response (Yes/No
B
authentication or e-KYC information) also takes the same route back.
The server of the ASA has to perform basic compliance and completeness
checks on the authentication data packet before forwarding it to the
CIDR. The Act prohibits sharing and disclosure of core biometric data
under Section 8 and 29. Other identity information is shared with requesting
C entity (AUAs and KUAs) only for the limited purpose of authentication.
The data is transferred from the requesting entity to the ASA to the
CIDR in an encrypted manner through a leased line circuitry using secure
Protocols (Regulation 9 of the Authentication Regulations). The storage
of data templates is in safely located servers with no public internet
inlet/outlet, and offline storage of original encrypted data (PID blocks).
D
There are safety and security provisions such as audit by Information
Systems Auditor. Requesting entities are appointed through agreement.
They can enter into agreement with sub-AUA or sub-KUA with
permission of the UIDAI. Whatever identity information is obtained by
the requesting entity is based on a specific consent of the Aadhaar number
E holder. The e-KYC data shared with the requesting entity can only be
after prior consent of the Aadhaar holder. Such data cannot be shared
and has to be stored in encrypted form. The biometric information used
is not permitted to be stored. Only the logs of authentication transactions
are maintained for a short period. Full identity information is never
transmitted back to the requesting entity. There is a statutory bar from
F
sharing biometric information (Section 29(1)(a)/Section 29(4)). Data
centres of ASA, requesting entities and CIDR should be within the
territory of India. There are various other provisions for monitoring,
auditing, inspection, limits on data sharing, data protection, punishments
etc., grievance redressal mechanism, suspension and termination of
G services, etc. so that all actions the entities involved in the process are
regulated. Regulation 3(i) & (j) of Aadhaar (Data Security) Regulation,
2016 enables partitioning of CIDR network into zones based on risk and
trust and other security measures. CIDR being a computer resource is
notified to be a “Protected System” under Section 70 of the IT Act by
the Central Government on December 11, 2015. Anyone trying to
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 307
[A. K. SIKRI, J.]

unlawfully gain access into this system is liable to be punished with 10 A

years imprisonment and fine. The storage involves end to end encryption,
logical partitioning, firewalling and anonymisation of decrypted biometric
data. Breaches of penalty are made punitive by Chapter VII of the Act.
Biometric information is deemed to be an “electronic record”, and
“Sensitive personal data or information” under the IT Act. There are
B
further guards under the Aadhaar (Data Security) Regulations, 2016.
152. That apart, we have recorded in detail the powerpoint
presentation that was given by Dr. Ajay Bhushan Pandey, CEO of the
Authority, which brings out the following salient features:
(a) During the enrolment process, minimal biometric data in the C
form of iris and fingerprints is collected. The Authority does not
collect purpose, location or details of transaction. Thus, it is purpose
blind. The information collected, as aforesaid, remains in silos.
Merging of silos is prohibited. The requesting agency is provided
answer only in ‘Yes’ or ‘No’ about the authentication of the person
concerned. The authentication process is not exposed to the D
Internet world. Security measures, as per the provisions of Section
29(3) read with Section 38(g) as well as Regulation 17(1)(d) of
the Authentication Regulations are strictly followed and adhered
to.
(b) There are sufficient authentication security measures taken E
as well, as demonstrated in Slides 14, 28 and 29 of the presentation.
(c) The Authority has sufficient defence mechanism, as explained
in Slide 30. It has even taken appropriate protection measures as
demonstrated in Slide 31.
F
(d) There is an oversight by Technology and Architecture Review
Board (TARB) and Security Review Committee.
(e) During authentication no information about the nature of
transaction etc. is obtained.
(f) The Authority has mandated use of Registered Devices (RD) G
for all authentication requests. With these, biometric data is signed
within the device/RD service using the provider key to ensure it is
indeed captured live. The device provider RD service encrypts
the PID block before returning to the host application. This RD
service encapsulates the biometric capture, signing and encryption
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308 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of biometrics all within it. Therefore, introduction of RD in Aadhaar

authentication system rules out any possibility of use of stored
biometric and replay of biometrics captured from other source.
Requesting entities are not legally allowed to store biometrics
captured for Aadhaar authentication under Regulation 17(1)(a)
of the Authentication Regulations.
B
(g) The Authority gets the AUA code, ASA code, unique device
code, registered device code used for authentication. It does not
get any information related to the IP address or the GPS location
from where authentication is performed as these parameters are
not part of authentication (v2.0) and e-KYC (v2.1) API. The
C Authority would only know from which device the authentication
has happened, through which AUA/ASA etc. It does not receive
any information about at what location the authentication device
is deployed, its IP address and its operator and the purpose of
authentication. Further, the authority or any entity under its control
D is statutorily barred from collecting, keeping or maintaining any
information about the purpose of authentication under Section
32(3) of the Aadhaar Act.
153. After going through the Aadhaar structure, as demonstrated
by the respondents in the powerpoint presentation from the provisions of
E the Aadhaar Act and the machinery which the Authority has created for
data protection, we are of the view that it is very difficult to create
profile of a person simply on the basis of biometric and demographic
information stored in CIDR. Insofar as authentication is concerned, the
respondents rightly pointed out that there are sufficient safeguard
mechanisms. To recapitulate, it was specifically submitted that there
F were security technologies in place (slide 28 of Dr. Pandey’s
presentation), 24/7 security monitoring, data leak prevention, vulnerability
management programme and independent audits (slide 29) as well as
the Authority’s defence mechanism (slide 30). It was further pointed
out that the Authority has taken appropriate pro-active protection
G measures, which included disaster recovery plan, data backup and
availability and media response plan (slide 31). The respondents also
pointed out that all security principles are followed inasmuch as: (a)
there is PKI-2048 encryption from the time of capture, meaning thereby,
as soon as data is given at the time of enrolment, there is an end to end
encryption thereof and it is transmitted to the Authority in encrypted
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 309
[A. K. SIKRI, J.]

form. The said encryption is almost foolproof and it is virtually impossible A

to decipher the same; (b) adoption of best-in-class security standards
and practices; and (c) strong audit and traceability as well as fraud
detection. Above all, there is an oversight of Technology and Architecture
Review Board (TARB) and Security Review Committee. This Board
and Committee consist of very high profiled officers. Therefore, the Act
B
has endeavoured to provide safeguards67.
154. Issue (b) relates to data protection. According to the
petitioners there is no data protection and there is a likelihood of misuse
of data/personal information of the individuals.
155. The question to be determined is whether the safeguards
provided for the protection of personal biometric data in the Aadhaar C
Act and Rules are sufficient. The crucial tasks that the Court needs to
undertake are – (i) to discuss the significance of data in the world of
technology and its impact; (ii) to determine the magnitude of protection
that should be accorded to collection, storage and use of sensitive
biometric data, so that they can qualify as proportionate; and (iii) to D
determine whether the Aadhaar Act and Rules provide such data
protection, thereby obviating any possibility of surveillance.
67
We may also take on record responsible statements of the learned Attorney General
and Mr. Dwivedi who appeared for UIDAI that no State would be interested in any
mass surveillance of 1.2 Billion people of the country or even the overwhelming majority
of officers and employees or professionals. The very idea of mass surveillance by State E
which pursues what an ANH does all the time and based on Aadhaar is an absurdity and
an impossibility. According to them, the petitioners submission is based on too many
imaginary possibilities, viz.:
(i) Aadhaar makes it possible for the State to obtain identity information of all ANH. It
is possible that UIDAI would share identity information/authentication records in
CIDR notwithstanding statutory prohibition and punitive injunctions in the Act. It is
possible that the State would unleash its investigators to surveil a sizeable section of F
the ANH, if not all based on the authentication records. It is submitted that given the
architecture of the Aadhaar Act, there are no such possibilities and in any event,
submission based on imaginary possibility do not provide any basis for questioning the
validity of Aadhaar Act. (ii) None of the writ petitions set forth specific facts and even
allegations that any Aadhaar number holder is being subjected to surveillance by UIDAI
or the Union/States. The emphasis during the argument was only on the possibility of
surveillance based on electronic track trails and authentication records. It was asserted G
that there are tools in the market for track back. The entire case was speculative and
conjectural. In Clapper, Director of National Intelligence v. Amnesty International
USA, the majority judgment did not approve the submissions in the context of Foreign
Intelligence Surveillance Act and one of the reason was that the allegations were
conjectural and speculative. There were no facts pleaded on the basis of which the
asserted threat could be fairly traced to. However, we have not deliberated on this
argument. H
310 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (i) Significance of Data:

156. Alvin Toffler in his illuminating article titled ‘What will our
future be like?’ has presented mind boggling ideas. Toffler traces the
transition – from agriculture society to industry society to knowledge
based society. If we go back to the beginnings of time, agriculture was
B the prime source and the entire mankind was based on agriculture. 350
years later with the invention of steam engines came the industrialized
age and now what we are living through is the third gigantic wave, which
is way more powerful than industrialized age. An age that is based on
knowledge. Toffler emphasises that in today’s society the only thing that
leads to creation of wealth is knowledge. Unlike the past wherein
C economics was described as the science of the allocation of scarce
resources, today we are primarily dependent on knowledge and that is
not a scarce resource. Times are changing, we can no longer trust the
straight line projection. His view is that we are going from a society
which is more and more uniform to a highly de-massified society.
D Knowledge is power. We are in the era of information. Probably what
Toffler is hinting is that access to this vast reservoir of information is
available in digital world. Information is available online, at the touch of
a button. With this, however, we usher into the regime of data.
157. In a recent speech by Mr. Benjamin Netanyahu, Prime
E Minister of Israel, while talking about innovation and entrepreneurship,
he brought out an interesting phenomena in the world of free market
principles, i.e. in the era of globalisation, in the following words:
“Look at the ten leading companies in 2006, five energy companies,
one IT company Microsoft and a mere ten years later, in 2016, a
F blink of an eye, in historical terms, its completely reversed, five IT
companies one energy company left. The true wealth is in
innovation - you know these companies - Apple, Google, Microsoft,
Amazon, Facebook.”
158. He adds by making a significant statement as the reason
G behind this change:
“...there is a reason something is going on, it’s a great change -
you want to hear a jargan – it’s a one sentence, this is a terrible
sentence, but I have no other way to say, it’s a confluence of big
data, connectivity and artificial intelligence. Ok, you get that? You
know what that does – it revolutionises old industries and it creates
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 311
[A. K. SIKRI, J.]

entirely new industries, so here is an old industry that Israel was A

always great in – Agriculture. We are always good in agriculture
but now we have precision agriculture. You know what that is?
See that drone in the sky is connected to a big database and there
is sensor at the field and in the field there is drip irrigation and drip
fertilization and now we can target with this technology the water
B
that we give, the fertilizer that we give down to the individual
plant that needs it. That’s precision agriculture, that’s Israel.
Unbelievable.”
159. This brings us to the world of data – big data. It has its own
advantages of tremendous nature. It is making life of people easier.
People can connect with each other even when they are located at C
places far away from each other. Not only they can converse with each
other but can even see each other while talking. There is a wealth of
information available on different networks to which they can easily
access and satisfy their quest for knowledge within seconds by getting
an answer. People can move from one place to the other with the aid of D
Global Positioning System (GPS). They can hear music and watch movies
on their handy gadgets, including smart cellphones. We are in the age of
digital economy which has enabled multiple avenues for a common man.
Internet access is becoming cheaper by the day, which can be accessed
not only through the medium of desktop computers or laptops and even
other handy gadgets like smart phones. Electronic transactions like online E
shopping, bill payments, movie/train/air ticket bookings, funds transfer,
e-wallet payments, online banking and online insurance etc. are happening
with extreme ease at the touch of a finger. Such tasks can be undertaken
sitting in drawing rooms. Even while travelling from one place to the
other in their car, they can indulge in all the aforesaid activities. In that F
sense, technology has made their life so easy.
160. However, there is another side to do as well, like any coin
which has two sides. The use of such technologies is at the cost of
giving away personal information, which is in the realm of privacy. In
order to connect with such technologies and avail their benefits, the G
users are parting with their biometric information like fingerprints and
iris as well as demographic information like their names, parentage, family
members, their age, even personal information like their sex, blood group
or even the ailments they are suffering from. Not only this, use of
aforesaid facilities on net or any portal like Apple, Google, Facebook
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312 SUPREME COURT REPORTS [2018] 8 S.C.R.

A etc. involves tracking their movements, including the nature of activities,

like the kind of shopping, the places from where shopping is done, the
actual money spent thereon, the nature of movies watched etc. All this
data is there with the companies in respect of its users which may even
turn into metadata. In fact, cases after cases are reported where such
data of users is parted with various purposes. Interestingly, for using
B
such facilities, people knowingly and willingly, are ready to part with
their vital personal information. Every transaction on a digital platform
is linked with some form of sensitive personal information. It can be an
individual’s user name, password, account number, PAN number,
biometric details, e-mail ID, debit/credit card number, CVV number and
C transaction OTP etc.
161. These have raised concerns about the privacy and protection
of data, which has become a matter of great concern. Problem is not
limited to data localisation but has become extra-territorial. There are
issues of cross-border transfers of personal data, regulation whereof is
D again a big challenge with which various opinions are grappling. There
are even talks of convergence of regulatory regime in this behalf so that
uniform approach is adopted in providing a legal ecosystem to regulate
cross-border data transfer. Asian Business Law Institute (ABLI), in
collaboration with Singapore Academy of Law (SAL) has, after
undertaking in-depth study, compiled 14 country reports in their respective
E jurisdictions on the regulation of cross-border data transfer and data
localisation in Asia.
162. In the aforesaid scenario, interesting issue is posed by the
respondents, viz., when so much personal information about people is
already available in public domain, how can there be an expectancy of
F data privacy. That aspect is dealt with while discussing the issue of
privacy. Here, we are concerned with data protection under Aadhaar
that is available with the State. As pointed out above, even in respect of
private players, the data protection has become a matter of serious
concern. When it comes to the State or the instrumentality of the State,
G the matter has to be taken with all seriousness, on the touchstone of
constitutionalism and the concept of limited Government.
(ii) Law on Data Protection:
163. In order to determine this aspect, i.e. the nature and magnitude
of data protection that is required to enable legal collection and use of
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 313
[A. K. SIKRI, J.]

biometric data, reliance can be placed on – (a) various existing legislations A

– both in India and across the world; and (b) case law including the
judgment in K.S. Puttaswamy.
(a) Legislation in India:
(i) Information Technology Act, 2000
B
The only existing legislation covering data protection related to
biometric information are Section 43A and Section 72A of the IT Act
and the Information Technology (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules, 2011
(hereinafter “Sensitive Personal Data Rules”). Although the IT Act and
Rules do not determine the constitutionality of use of biometric data and C
information by the Aadhaar Act and Rules, they are instructive in
determining the safeguards that must be taken to collect biometric
information68.
164. Following are the provisions which cover biometric
information under the IT Act: D
Section 43A of the IT Act attaches liability to a body corporate,
which is possessing, handling and dealing with any ‘sensitive personal
information or data’ and is negligent in implementing and maintaining
reasonable security practices resulting in wrongful loss or wrongful gain
to any person. ‘Sensitive personal information or data’ is defined under E
Rule 3 of the Sensitive Personal Data Rules to include information relating
to biometric data. Section 43A reads as follows:
“43A. Compensation for failure to protect data. -Where a
body corporate, possessing, dealing or handling any sensitive
personal data or information in a computer resource which it owns, F
controls or operates, is negligent in implementing and maintaining
reasonable security practices and procedures and thereby causes
wrongful loss or wrongful gain to any person, such body corporate
shall be liable to pay damages by way of compensation to the
person so affected.
G
Explanation. -For the purposes of this section,-
68
A challenge to the Aadhaar project for violation of IT Act and Rules has been filed in
the Delhi High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore,
we are not dealing with this aspect, nor does it arise for consideration in these
proceedings.
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314 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (i) “body corporate” means any company and includes a firm,

sole proprietorship or other association of individuals engaged in
commercial or professional activities;
(ii) “reasonable security practices and procedures” means security
practices and procedures designed to protect such information
B from unauthorised access, damage, use, modification, disclosure
or impairment, as may be specified in an agreement between the
parties or as may be specified in any law for the time being in
force and in the absence of such agreement or any law, such
reasonable security practices and procedures, as may be prescribed
by the Central Government in consultation with such professional
C bodies or associations as it may deem fit;
(iii) “sensitive personal data or information” means such personal
information as may be prescribed by the Central Government in
consultation with such professional bodies or associations as it
may deem fit.]”
D
165. Similarly, Section 72A of the IT Act makes intentional
disclosure of ‘personal information’ obtained under a contract, without
consent of the parties concerned and in breach of a lawful contract,
punishable with imprisonment and fine. Rule 2(i) of the Sensitive Personal
Data Rules define “personal information” to mean any information that
E relates to a natural person, which, either directly or indirectly, in
combination with other information available or likely to be available
with a body corporate, is capable of identifying such person. Thus,
biometrics will form a part of “personal information”. The Section reads
as under-
F “72A. Punishment for disclosure of information in breach
of lawful contract - Save as otherwise provided in this Act or
any other law for the time being in force, any person including an
intermediary who, while providing services under the terms of
lawful contract, has secured access to any material containing
G personal information about another person, with the intent to cause
or knowing that he is likely to cause wrongful loss or wrongful
gain discloses, without the consent of the person concerned, or in
breach of a lawful contract, such material to any other person,
shall be punished with imprisonment for a term which may extend
to three years, or with fine which may extend to five lakh rupees,
H or with both.”
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 315
[A. K. SIKRI, J.]

166. The Sensitive Personal Data Rules provide for additional A

requirements on commercial and business entities (body corporates as
defined under Section 43A of the IT Act) relating to the collection and
disclosure of sensitive personal data (including biometric information).
The crucial requirements, which are indicative of the principles for data
protection that India adheres to, inter alia include:
B
(i) The body corporate or any person who on behalf of body
corporate collects, receives, possesses, stores, deals or handle
information of provider of information, shall provide a privacy policy
for handling of or dealing in personal information including sensitive
personal data or information and ensure that the same are available
for view. C

(ii) Body corporate or any person on its behalf shall obtain consent
in writing from the provider of the sensitive personal data or
information regarding purpose of usage before collection of such
information.
D
(iii) Body corporate or any person on its behalf shall not collect
sensitive personal data or information unless — (a) the information
is collected for a lawful purpose connected with a function or
activity of the body corporate or any person on its behalf; and (b)
the collection of the sensitive personal data or information is
considered necessary for that purpose E

(iv) The person concerned has the knowledge of — (a) the fact
that the information is being collected; (b) the purpose for which
the information is being collected; (c) the intended recipients of
the information; and (d) name and address of the agency collecting
and retaining the information. F
(v) Body corporate or any person on its behalf holding sensitive
personal data or information shall not retain that information for
longer than is required for the purposes for which the information
may lawfully be used or is otherwise required under any other
law for the time being in force. G
(vi) Information collected shall be used for the purpose for which
it has been collected.
(vii) Body corporate or any person on its behalf shall, prior to the
collection of information, including sensitive personal data or
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316 SUPREME COURT REPORTS [2018] 8 S.C.R.

A information, provide an option to the provider of the information

to not to provide the data or information sought to be collected.
(viii) Body corporate shall address any discrepancies and
grievances of their provider of the information with respect to
processing of information in a time bound manner.
B (ix) Disclosure of sensitive personal data or information by body
corporate to any third party shall require prior permission from
the provider of such information, who has provided such
information under lawful contract or otherwise, unless such
disclosure has been agreed to in the contract between the body
C corporate and provider of information, or where the disclosure is
necessary for compliance of a legal obligation.
(x) A body corporate or a person on its behalf shall comply with
reasonable security practices and procedure i.e. implement such
security practices and standards and have a comprehensive
D documented information security programme and information
security policies that contain managerial, technical, operational
and physical security control measures that are commensurate
with the information assets being protected with the nature of
business. In the event of an information security breach, the body
corporate or a person on its behalf shall be required to demonstrate,
E as and when called upon to do so by the agency mandated under
the law, that they have implemented security control measures as
per their documented information security programme and
information security policies.
The above substantive and procedural safeguards are required
F for legal collection, storage and use of biometric information under the
IT Act. They indicate the rigour with which such processes need to be
carried out.
Position in other countries:
(a) EUGDPR (European Union General Data Protection
G
Regulation)69
69
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC
(General Data Protection Regulation)
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 317
[A. K. SIKRI, J.]

EUGDPR which was enacted by the EU in 2016 came into force A

on May 25, 2018 replacing the Data Protection Directive of 1995. It is
an exhaustive and comprehensive legal framework that is aimed at
protection of natural persons from the processing of personal data and
their right to informational privacy. It deals with all kinds of processing
of personal data while delineating rights of data subjects and obligations
B
of data processors in detail. The following fundamental principles of
data collection, processing, storage and use reflect the proportionality
principle underpinning the EUGDPR -
(i) the personal data shall be processed lawfully, fairly, and in a
transparent manner in relation to the data subject (principle of
lawfulness, fairness, and transparency); C

(ii) the personal data must be collected for specified, explicit, and
legitimate purposes (principle of purpose limitation);
(iii) processing must also be adequate, relevant, and limited to
what is necessary (principle of data minimization) as well as D
accurate and, where necessary, kept up to date (principle of
accuracy);
(iv) data is to be kept in a form that permits identification of data
subjects for no longer than is necessary for the purposes for which
the personal data are processed (principle of storage limitation); E
(v) data processing must be secure (principle of integrity and
confidentiality); and
(vi) data controller is to be held responsible (principle of
accountability).
F
167. The EUGDPR under Article 9 prohibits the collection of
biometric data unless except in few circumstances which include (but
are not limited to) -
(a) there is an explicit consent by the party whose data is being
collected. The consent should be freely given, which is clearly
distinguishable in an intelligible and easily accessible form, using G
clear and plain language. This consent can be withdrawn at any
time without affecting the actions prior to the withdrawal;
(b) processing is necessary for the purposes of carrying out the
obligations and exercising specific rights of the controller or of
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318 SUPREME COURT REPORTS [2018] 8 S.C.R.

A the data subject in the field of employment and social security and
social protection law;
(c) processing relates to personal data which is manifestly made
public by the data subject; and
(d) processing is necessary for reasons of substantial public
B interest, and it shall be proportionate to the aim pursued, respect
the essence of the right to data protection and provide for suitable
and specific measures to safeguard the fundamental rights and
the interests of the data subject.
168. The Regulation also institutes rights of the data subject (the
C person whose data is collected), subject to exceptions, which include the
data subject’s right of access to information about the purpose of collection
of data, details of data controller and subsequent use and transfer of
data, the data subject’s right to rectification of data, right to erasure or
right to be forgotten, the data subject’s right to restriction of processing,
D the right to be informed, the right to data portability and the data subject’s
right to object to illegitimate use of data.
(b) Biometric Privacy Act in the United States of America
169. Some States in the United States of America have laws
regulating collection and use of biometric information. Illinois has passed
E Biometric Information Privacy Act (740 ILCS 14/1 or BIPA) in 2008.
Texas has also codified the law for capture of use of biometric identifier
(Tex. Bus. & Com. Code Ann. §503.001) in 2009. The Governor of the
Washington State signed into law House Bill 1493 (“H.B. 1493”) on
May 16, 2017, which sets forth requirements for businesses who collect
F and use biometric identifiers for commercial purposes. BIPA, Illinois,
for example makes it unlawful for private entities to collect, store, or use
biometric information, such as retina/iris scans, voice scans, face scans,
or fingerprints, without first obtaining individual consent for such activities.
BIPA also requires that covered entities take specific precautions to
secure the information.
G
(b) Case Laws:
170. In K.S. Puttaswamy’s judgment, all the Judges highlighted
the importance of informational privacy in the age of easy access, transfer,
storage and mining of data. The means of aggregation and analysis of
data of individuals through various tools are explained. Chandrachud, J.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 319
[A. K. SIKRI, J.]

observed that with the increasing ubiquity of electronic devices, A

information can be accessed, stored and disseminated without notice to
the individual. Metadata and data mining make the individual’s personal
information subject to private companies and the state. In this background,
His Lordship discusses the necessity of a data protection regime for
safeguarding privacy and protecting the autonomy of the individual. The
B
following observations in the conclusion of the judgment are worth quoting:
“328. Informational privacy is a facet of the right to privacy. The
dangers to privacy in an age of information can originate not only
from the state but from non-state actors as well. We commend to
the Union Government the need to examine and put into place a
robust regime for data protection. The creation of such a regime C
requires a careful and sensitive balance between individual interests
and legitimate concerns of the state. The legitimate aims of the
state would include for instance protecting national security,
preventing and investigating crime, encouraging innovation and
the spread of knowledge, and preventing the dissipation of social D
welfare benefits. These are matters of policy to be considered by
the Union government while designing a carefully structured regime
for the protection of the data. Since the Union government has
informed the Court that it has constituted a Committee chaired by
Hon’ble Shri Justice B N Srikrishna, former Judge of this Court,
for that purpose, the matter shall be dealt with appropriately by E
the Union government having due regard to what has been set
out in this judgment.”
171. S.K. Kaul, J. cited the European Union General Data
Protection Regulations70 to highlight the importance of data protection
and the circumstances in which restrictions on the right to privacy may F
be justifiable subject to the principle of proportionality. These include
balance against other fundamental rights, legitimate national security
interest, public interest including scientific or historical research purposes
or statistical purposes, criminal offences, tax purposes, etc.
172. There are numerous case laws – both American and European G
– presented by the petitioners and the respondents with respect to the
70
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC
(General Data Protection Regulation)
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320 SUPREME COURT REPORTS [2018] 8 S.C.R.

A collection, storage and use of biometric data which have been taken
note of above. They are illustrative of the method and safeguards required
to satisfy the proportionality principle while dealing with biometric data.
The first set of cases cited by the petitioners are cases from European
Human Rights Courts.
B 173. The European Human Rights legislations have both explicitly
and through case laws recognized the right to informational privacy and
data protection. The EU Charter of Fundamental Rights states in Article
7 that ‘everyone has the right to respect for his or her private and family
life, home and communications’ and in Article 8 it grants a fundamental
right to protection of personal data. The first article of the EU Charter
C affirms the right to respect and protection of human dignity. The ECHR
also recognises the right to respect for private and family life, home and
his correspondence which have been read to include protection of right
to control over personal biometric information.
174. As pointed out above as well, a prominent case which
D addresses the question of storage of biometric data, i.e. whether storage
and retention of DNA samples and fingerprints violates Article 8 of the
ECHR, is S and Marper71. In this case, the storing of DNA profiles and
cellular samples of any person arrested in the United Kingdom was
challenged before the ECtHR. Even if the individual was never charged
E or if criminal proceedings were discontinued or if the person was later
acquitted of any crime, their DNA profile could nevertheless be kept
permanently on record without their consent.
175. In a unanimous verdict, the seventeen-judge bench held that
there had been a violation of Article 8 of the ECHR. Fingerprints, DNA
F profiles and cellular samples, constituted personal data and their retention
was capable of affecting private life of an individual. The retention of
such data without consent, thus, constitutes violation of Article 8 as they
relate to identified and identifiable individuals. It held that:
“84. …fingerprints objectively contain unique information about
G the individual concerned allowing his or her identification with
precision in a wide range of circumstances. They are thus capable
of affecting his or her private life and retention of this information
without the consent of the individual concerned cannot be
regarded as neutral or insignificant.”
71
S and Marper v. United Kingdom [2008] ECHR 1581
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 321
[A. K. SIKRI, J.]

176. It articulated the proportionality principle in the following A

words:
“101. An interference will be considered “necessary in a
democratic society” for a legitimate aim if it answers a “pressing
social need” and, in particular, if it is proportionate to the legitimate
aim pursued and if the reasons adduced by the national authorities B
to justify it are “relevant and sufficient
xx xx xx
The protection of personal data is of fundamental importance to a
person’s enjoyment of his or her right to respect for private and
family life, as guaranteed by Article 8 of the Convention. The C
domestic law must afford appropriate safeguards to prevent any
such use of personal data as may be inconsistent with the
guarantees of this Article. The need for such safeguards is all the
greater where the protection of personal data undergoing automatic
processing is concerned, not least when such data are used for D
police purposes. The domestic law should notably ensure that such
data are relevant and not excessive in relation to the purposes for
which they are stored; and preserved in a form which permits
identification of the data subjects for no longer than is required
for the purpose for which those data are stored … The domestic
law must also afford adequate guarantees that retained personal E
data was efficiently protected from misuse and abuse.”
177. The issue in the case according to the Court was whether
the retention of the fingerprints and DNA data of the applicants, as
persons who had been suspected but not convicted of certain criminal
offences, was justified under Article 8 of the Convention. F
178. The Court held that such invasion of privacy was not
proportionate as it was not “necessary in a democratic society” as it did
not fulfill any pressing social need. The blanket and indiscriminate nature
of retention of data was excessive and did not strike a balance between
private and public interest. It held: G
“125. 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
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322 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 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. This conclusion obviates the need for the Court
B
to consider the applicants’ criticism regarding the adequacy of
certain particular safeguards, such as too broad an access to the
personal data concerned and insufficient protection against the
misuse or abuse of such data.”
179. The two crucial aspects of the case that need to be kept in
C mind are – First, in that case, the fingerprints were collected for criminal
purposes and without the consent of the individual to whom the fingerprints
belonged. Second, the fingerprints were to be stored indefinitely without
the consent of the individual and that the individual did not have an option
to seek deletion. These aspects were vital for the Court to decide that
D the retention violated the citizen’s right to privacy.
180. Similarly, in the Digital Ireland case 72, the European
Parliament and the Council of the European Union adopted Directive
2006/24/EC (Directive), which regulated Internet Service Providers’
storage of telecommunications data. It could be used to retain data which
E was generated or processed in connection with the provision of publicly
available electronic communications services or of public communications
network, for the purpose of fighting serious crime in the European Union.
The data included data necessary to trace and identify the source of
communication and its destination, to identify the date, time duration,
type of communication, IP address, telephone number and other fields.
F The Court of Justice of European Court (CJEU) evaluated the
compatibility of the Directive with Articles 7 and 8 of the Charter and
declared the Directive to be invalid.
181. According to the CJEU, the Directive interfered with the
right to respect for private life under Article 7 and with the right to the
G protection of personal data under Article 8 of the Charter of Fundamental
Rights of the European Union. It allowed very precise conclusion to be
drawn concerning the private lives of the persons whose data had been
retained, such as habits of everyday life, permanent or temporary places
72
Digital Rights Ireland Ltd v Minister for Communication, Marine and Natural
Resources [2014] All ER (D) 66 (Apr)
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 323
[A. K. SIKRI, J.]

of residence, daily and other movements, activities carried out, social A

relationships and so on. The invasion of right was not proportionate to
the legitimate aim pursued for the following reasons:
(i) Absence of limitation of data retention pertaining to a particular
time period and/or a particular geographical zone and/or to a circle
of particular persons likely to be involved. B
(ii) Absence of objective criterion, substantive and procedural
conditions to determine the limits of access of the competent
national authorities to the data and their subsequent use for the
purposes of prevention, detection or criminal prosecutions. There
was no prior review carried out by a court or by an independent C
administrative body whose decision sought to limit access to the
data and their use to what is strictly necessary for attaining the
objective pursued.
(iii) Absence of distinction being made between the categories of
data collected based on their possible usefulness.
D
(iv) Period of retention i.e. 6 months was very long being not
based on an objective criterion.
(v) Absence of rules to protect data retained against the risk of
abuse and against any unlawful access and use of that data.
(vi) Directive does not require the data in question to be retained E
within the European Union.
182. In Tele2 Sverige AB vs. Post-och telestyrelsen73, the CJEU
was seized with the issue as to whether in light of Digital Rights Ireland,
a national law which required a provider of electronic communications
services to retain meta-data (name, address, telephone number and IP
F
address) regarding users/subscribers for the purpose of fighting crime
was contrary to Article 7, 8 and 11 of the EU Charter. The CJEU struck
down the provision allowing collection of such meta data on grounds of
lack of purpose limitation, data differentiation, data protection, prior
review by a court or administrative authority and consent, amongst other
grounds. It held: G
“103. While the effectiveness of the fight against serious crime,
in particular organised crime and terrorism (…) cannot in itself
73
Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home
Department v. Tom Watson, Peter Brice, Geoffrey Lewis, Joined Cases C-203/15
and C-698/15, 2016 H
324 SUPREME COURT REPORTS [2018] 8 S.C.R.

A justify that national legislation providing for the general and

indiscriminate retention of all traffic and location data should be
considered to be necessary for the purposes of that fight.
xx xx xx
105. Second, national legislation (…) provides for no differentiation,
B limitation or exception according to the objective pursued. It is
comprehensive in that it affects all persons using electronic
communication services, even though those persons are not, even
indirectly, in a situation that is liable to give rise to criminal
proceedings. It therefore applies even to persons for whom there
C is no evidence capable of suggesting that their conduct might have
a link, even an indirect or remote one, with serious criminal
offences. Further, it does not provide for any exception, and
consequently it applies even to persons whose communications
are subject, according to rules of national law, to the obligation of
professional secrecy.
D
xx xx xx
if it is to be ensured that data retention is limited to what is strictly
necessary, it must be observed that, while those conditions may
vary according to the nature of the measures taken for the purposes
E of prevention, investigation, detection and prosecution of serious
crime, the retention of data must continue nonetheless to meet
objective criteria, that establish a connection between the data to
be retained and the objective pursued. In particular, such conditions
must be shown to be such as actually to circumscribe, in practice,
the extent of that measure and, thus, the public affected.”
F
183. With respect to measures for data security and data protection
the court held :
“122. Those provisions require those providers to take appropriate
technical and organisational measures to ensure the effective
protection of retained data against risks of misuse and against
G
any unlawful access to that data. Given the quantity of retained
data, the sensitivity of that data and the risk of unlawful access to
it, the providers of electronic communications services must, in
order to ensure the full integrity and confidentiality of that data,
guarantee a particularly high level of protection and security by
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 325
[A. K. SIKRI, J.]

means of appropriate technical and organisational measures. In A

particular, the national legislation must make provision for the data
to be retained within the European Union and for the irreversible
destruction of the data at the end of the data retention period.”
184. In BVerfG74, the German Constitutional Court rendered on
March 02, 2010 a decision by which provisions of the data retention B
legislation adopted for, inter alia, the prevention of crime were rendered
void because of lack of criteria for rendering the data retention
proportional.
185. In Maximillian Schrems v. Data Protection
Commissioner75, the CJEU struck down the transatlantic US-EU Safe C
Harbor agreement that enabled companies to transfer data from Europe
to the United States on the ground that there was not an adequate level
of safeguard to protect the data. It held that the U.S. authorities could
access the data beyond what was strictly necessary and proportionate
to the protection of national security. The subject had no administrative
or judicial means of accessing, rectifying or erasing their data. D

186. In Szabo and Vissy v. Hungary 76 , the ECtHR held

unanimously that there had been a violation of Article 8 (right to respect
for private and family life, the home and correspondence) of the European
Convention on Human Rights. The case concerned Hungarian legislation
on secret anti-terrorist surveillance introduced in 2011. The court held E
that the legislation in question did not have sufficient safeguards to avoid
abuse. Notably, the scope of the measures could include virtually anyone
in Hungary, with new technologies enabling the Government to intercept
masses of data easily concerning even persons outside the original range
of operation. Furthermore, the ordering of such measures was taking F
place entirely within the realm of the executive and without an assessment
of whether interception of communications was strictly necessary. There
were no effective remedial measures in place, let alone judicial ones.
The court held:
“77. … Rule of law implies, inter alia, that an interference by the G
executive authorities with an individual right should be subject to
an effective control which should normally be assured by the
judiciary, at least in the last resort…”
74
2.03. 2010, 1 BvR 256 / 08 , 1 BvR 263 / 08 , 1 BvR 586 / 08
75
[2016] 2 W.L.R. 873
76
Eur. Ct. H.R. 2016 H
326 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 187. Thus, it is evident from various case laws cited above, that
data collection, usage and storage (including biometric data) in Europe
requires adherence to the principles of consent, purpose and storage
limitation, data differentiation, data exception, data minimization,
substantive and procedural fairness and safeguards, transparency, data
protection and security. Only by such strict observance of the above
B
principles can the State successfully discharge the burden of
proportionality while affecting the privacy rights of its citizens.
188. The jurisprudence with respect to collection, use and retention
of biometric information in the United States differs from the EU. In the
US context, there is no comprehensive data protection regime. This is
C because of the federal system of American government, there are multiple
levels of law enforcement¯federal, state, and local. Different states have
differing standards for informational privacy. Moreover, the U.S. has a
sectoral approach to privacy, i.e. laws and regulations related to data
differ in different sectors such as health sector or student sector. In
D most cases, however, the Fourth Amendment which prohibits
“unreasonable searches and seizures” by the government has been read
by courts to envisage various levels data protection.
189. At this juncture, we are not entering the debate as to whether
the jurisprudence developed in United States is to be preferred or E.U.
E approach would be more suitable. Fact remains that importance to data
protection in processing the data of the citizens is an accepted norm.
190. Observance of this fundamental principle is necessary to
prevent a disproportionate infringement of the Fundamental Right of
Privacy of a citizen. The question which now needs to be addressed is
F whether the Aadhaar Act and Rules incorporate these principles of data
protection. We have already taken note of the provisions in the Act,
which relate to data protection. However, a detailed analysis of the
provisions of the Act needs to be undertaken for this purpose having
regard to the principles that have emerged from case law in other
jurisdiction and noted in paragraph 187 above.
G
Data Minimisation:
191. The petitioners have argued that the Act enables data
collection indiscriminately regarding all aspects of a person (biometrics,
demographic details, authentication records, meta-data related to
transaction) even though such data has no nexus to the purported object
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 327
[A. K. SIKRI, J.]

of subsidies, thus violating the principle of data minimization. The data A

collected is sufficient to indicate religion, class, social status, income,
education and intimate personal details. Under Section 32 of the Act,
authentication records are stored in the central database in the manner
prescribed under the Regulations. Regulation 26 of the Authentication
Regulations requires UIDAI to store “authentication transaction data”
B
consisting of: (a) authentication request data received including PID block;
(b) authentication response data sent; (c) meta data related to the
transaction; and (d) any authentication server side configurations as
necessary. The authentication record affords access to information that
can be used and analyzed to systematically track or profile an individual
and her activities. C
192. As per the respondents, Aadhaar involves minimal identity
information for effective authentication. Four types of information
collected for providing Aadhaar:
(i) Mandatory demographic information comprising name, date of
birth, address and gender [Section 2(k) read with Regulation 4(1) D
of the Aadhaar (Enrolment and Update) Regulations, 2016];
(ii) Optional demographic information [Section 2(k) read with
Regulation 4(2) of the Aadhaar (Enrolment and Update)
Regulations, 2016];
E
(iii) Non-core biometric information comprising photograph;
(iv) Core biometric information comprising finger print and iris
scan.
193. Demographic information, both mandatory and optional, and
photographs does not raise a reasonable expectation of privacy under F
Article 21 unless under special circumstances such as juveniles in conflict
of law or a rape victim’s identity. Today, all global ID cards contain
photographs for identification alongwith address, date of birth, gender
etc. The demographic information is readily provided by individuals
globally for disclosing identity while relating with others and while seeking
G
benefits whether provided by government or by private entities, be it
registration for citizenship, elections, passports, marriage or enrolment
in educational institutions. Email ids and phone numbers are also available
in public domain, For example in telephone directories. Aadhaar Act
only uses demographic information which are not sensitive and where
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328 SUPREME COURT REPORTS [2018] 8 S.C.R.

A no reasonable expectation of privacy exists - name, date of birth, address,

gender, mobile number and e mail address. Section 2(k) specifically
provides that Regulations cannot include race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history.
Thus, sensitive information specifically stand excluded.
B 194. We find that Section 32 (3) of the Aadhaar Act specifically
prohibits the authority from collecting, storing or maintaining, either directly
or indirectly any information about the purpose of authentication. The
proviso to Regulation 26 of Authentication Regulations is also to the
same effect.
C 195. Thus, the principle of data minimization is largely followed.
196. With this, we advert to some other provisions, challenge
whereof is based on threat to security of the data. These are Section
2(c), Section 2(g) and Section 2(h) read with Section 10 of the Aadhaar
Act. Section 2(c) pertains to authentication. It is a process by which
D Aadhaar number along with demographic information or biometric
information of an individual is submitted to the CIDR for its verification.
On submission thereof, the CIDR verifies the correctness or lack of it.
CIDR is defined in Section 2(h). Section 10 lays down that the Authority
may engage one or more entities to establish or maintain the CIDR and
to perform any other functions as may be specified by regulations.
E
197. Insofar as authentication process is concerned, that has
already been taken note of above. The manner in which it is explained
by the respondent authority, that may not pose much of a problem. As
noted earlier, while seeking authentication, neither the location of the
person whoso identity is to be verified nor the purpose for which
F authentication of such identity is needed, comes to the knowledge of the
Authority and, therefore, such data collected by the Authority. Therefore,
the threat to real time surveillance and profiling may be far-fetched.
The respondents have explained that Section 2(d) defines “authentication
record” to mean the record of the time of authentication, identity of the
G RE and the response provided by the authority”, Regulation 26 (a) to (d)
does not go beyond the scope of Section 2(d). None of the four clauses
of Regulation 26 entitle the authority to store data about the purpose for
which authentication is being done. The device can therefore only tell
the authority the identity of the RE, the PID, the time and nature of
response, the code of the device and the authentication server side
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 329
[A. K. SIKRI, J.]

configurations. Identity of the RE does not include details of the A

organization which is seeking authentication as an RE provides
authentication service to large number of government organizations who
have agreements with it. Such a mechanism preventing the authority
from tracking the nature of activity for which the authentication was
required. To illustrate nic.in is an RE which provides authentication
B
service to large number of Government organisations who have
agreements with it. The authentication record would only contain
information about the identity about the RE. It will give information only
about the RE (nic.in) and not about the organisation which is requiring
authentication through the RE. In most cases the authentication is one
time. Mr. Dwivedi has also explained that yet again, there may be C
organisations, which have branches in different part of India. Assuming
Apollo Hospital (although in fact it is not an RE) has five branches in
India. If Apollo Hospital seeks authentication as an RE, the authentication
record will merely tell the identity of Apollo Hospital and its device code,
but it will not indicate which branch of Apollo was seeking authentication
D
and from which part of the country. Further, assuming that the Indira
Gandhi International Airport is an RE and there is requirement of
authentication at the point of entry and/or exit. All that the record will
show that the ANH has entered the airport at a particular time but it will
not show by which plane he is flying and to what destination. At the
time of exit, it will only show that the person has exited the airport at a E
particular time. It will not show from which flight he has arrived and
from which destination and at what time he has arrived or with whom he
travelled.
198. However, other apprehension of the petitioners is that storing
of data for a period of seven years as per Regulations 20 and 26/27 of F
the Aadhaar (Authentication) Regulations, 2016 is too long a period. We
may reproduce Regulations 26 and 27 of the Aadhaar (Authentication)
Regulations, 2016 hereunder:
“26. Storage and Maintenance of Authentication Transaction Data
– (1) The Authority shall store and maintain authentication G
transaction data, which shall contain the following information:-
(a) authentication request data received including PID block;
(b) authentication response data sent;
(c) meta data related to the transaction;
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330 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (d) any authentication server side configurations as necessary:

Provided that the Authority shall not, in any case, store the purpose
of authentication.
27. Duration of storage – (1) Authentication transaction data
shall be retained by the Authority for a period of 6 months, and
B thereafter archived for a period of five years.
(2) Upon expiry of the period of five years specified in sub-
regulation (1), the authentication transaction data shall be deleted
except when such authentication transaction data are required to
be maintained by a court or in connection with any pending dispute.”
C
199. It is also submitted that Section 10 which authorises the
Authority to engage one or more entities, which may be private entities,
to establish and maintain CIDR is a serious threat to privacy and it even
amounts to compromise on national sovereignty and security. Insofar as
first argument is concerned, there appears to be some force in that. If
D authentication is the only purpose, we fail to understand why this
authentication record is needed to be kept for a period of 2+5 years. No
satisfactory explanation in this behalf was given.
200. Insofar as information regarding metadata is concerned, we
may note that the respondents distinguished between three types of meta-
E data :technical, business and process metadata. Process metadata
describes the results of various operations such as logs key data, start
time, end time, CPU seconds used, disk reads, disk writes, and rows
processed. This data is valuable for purposes of authenticating transaction,
troubleshooting , security, compliance and monitoring and improving
F performance. They submit that the metadata contemplated under this
Regulation is Process metadata.
201. However, metadata is not defined in the Aadhaar Act. In
common parlance, it is understood as information about data, example
whereof was given by Mr. Sibal that the text of a message exchanged
between two persons would be the data itself. However, surrounding
G
circumstances like when the message was sent; from whom and to
whom the message was sent; and location from which the message was
sent would include meta data. As noted above, Mr. Dwivedi had tried to
explain it away by stating that there are three types of meta data, namely,
technical, business and process meta data. According to him, meta data
H under the Aadhaar Act refers to only process meta data. In support, he
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 331
[A. K. SIKRI, J.]

had referred to Section 2(d) of the Aadhaar Act which defines A

‘authentication record’ to mean the record of the time of authentication,
identity of requesting entity and the response provided by the Authority.
He, thus, submitted that Regulation 26 would not go beyond Section
2(d). However, aforesaid explanation that meta data refers to process
data only does not find specific mention. There is, thus, need to amend
B
Regulation 26 to restrict it to process meta data, and to exclude other
type of meta data specifically.
Purpose Limitation:
202. As per the petitioners, there is no purpose limitation. Identity
information collected for one purpose under the Act can be used for C
any other (new) purpose. Definition of “benefit” (Section 2(f)) and
“service” (Section 2(w)) and “subsidy” (Section 2(x)), to which the
personal data collected is supposed to be applied is not identifiable. It is
open to the executive to notify that any advantage, gift, reward, relief,
payment, provision, facility, utility or any other assistance aid, support,
grant subvention, or appropriation may be made conditional on Aadhaar D
Authentication. Moreover, under Section 57, the State, a body corporate
or any person can avail authentication facility and access information
under CIDR. This creates an open ended and unspecified set of laws
and contracts for which Aadhaar can be used and defeats the principle
of informed consent at the time of enrolment and purpose limitation. E
203. Respondents controvert the aforesaid submission by arguing
that there is purpose limitation under the Aadhaar Act as purpose of use
of biometric data in the CIDR is limited to authentication for identification.
The Aadhaar holder is made aware of such use of the Aadhaar card at
the time of enrolment. The enrolling agency is obliged under the Enrolment F
Regulations to inform the individual about the manner in which the
information shall be used, the nature of recipients with whom the
information is to be shared during authentication; and the existence of a
right to access information, the procedure for making request for such
access and details of the person/ department to whom request can be
made. This information to individual is the basis for his consent for G
enrolment.
204. As per the respondents, Section 57 is not an enabling provision
which allows Aadhaar to be used for purposes other than Section 7, but
is a limiting provision. It limits its use by State, Body Corporate or a
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332 SUPREME COURT REPORTS [2018] 8 S.C.R.

A person by requiring it to be sanctioned by any law in force or any contract

and making the use subject to the proviso to Section 57. The proviso
requires the use of Aadhaar under this Section to be subject to procedure
and obligations under Section 8 and Chapter VI of penalties. Section
8(2)(a) requires Requesting Entities (RE) (parties authorized to carry
out authentication under Section 57) to obtain the consent of an individual
B
before collecting her identity information for the purposes of
authentication in such manner as may be specified by regulations. Section
8(3) enables this consent to be informed consent by requiring that an
individual submitting her identity information for authentication shall be
informed of the nature and the use of the information that may be shared
C upon authentication and the alternatives to submission of identity
information to the requesting entity. This aspect is discussed in detail at
a later stage, as it touches upon privacy aspects as well. Suffice it is to
mention here that we have found some portion of Section 57 as offending
and declared that unconstitutional.
D Insofar as Sections 2(f), (w) and (x) are concerned, these
provisions are discussed at a later stage77. We would like to mention
here that we have read down these provisions. The aforesaid measure
would subserve the purpose limitation as well.
Time Period for Data Retention:
E 205. We have touched upon this aspect hereinabove. According
to petitioners, the data is allowed to be retained for an unreasonable
long period of time. Regulation 27 of the Authentication Regulations
requires the UIDAI to retain the “authentication transaction data” (which
includes the meta data) for a period of 6 months and to archive the same
F for a period of 5 years thereafter. Regulation 18(3) and 20(3) allow
Requesting entities (RE) and Authentication Service Agencies to
retain the authentication logs for a period of 2 years and then archive
them for 5 years. It is required to be deleted only after 7 years unless
retained by a court. The right of the citizen to erasure of data or right to
be forgotten is severely affected by such regulation. There is no provision
G to delete the biometric information in any eventuality once a person is
enrolled.
We do not find any reason for archiving the authentication
transaction data for a period of five years. Retention of this data for a
77
See paragraphs 320 to 322
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 333
[A. K. SIKRI, J.]

period of six months is more than sufficient after which it needs to be A

deleted except when such authentication transaction data are required
to be maintained by a Court or in connection with any pending dispute.
Regulations 26 and 27 shall, therefore, be amended accordingly.
Data Protection and Security:
206. Petitioners argued that there are not enough safeguards for B
data protection and security in the Act. Section 28 of the Act which
addresses security and confidentiality of information is vague and fails
to lay down any standard of data security or prescribe any cogent
measures which are to be taken to prevent data breaches. Section 54
empowers UIDAI to make regulations related to various data C
management processes, security protocol and other technology
safeguards. The Aadhaar (Data Security) Regulations, 2016 passed by
UIDAI under Section 54, vest in the authority a discretion to specify “an
information security policy” (Regulation 3). This leads to excessive
delegation. Alternatively, it has not been subject to parliamentary oversight
which Regulations under Section 54 require. Further, the CIDR central D
database, unlike the ASAs and REs (under Authentication Regulation
22(1)), are not required to be located in data centres. The personal data
is accessible by private entities such as AUAs and KUAs and other
private entities such as banks, insurance companies and telecom service
providers. There have been numerous data breaches in the Aadhaar E
system. These establish its vulnerability. There are not enough safeguards
from data hack and data leak. The data is being used by private parties
to build comprehensive databases containing information and profiles of
individuals. Thus the project also lacks transparency of data and its
use.
F
207. The Respondents contend that strong measures for data
protection and security, taken at all stages of data collection, transfer,
storage and use.
After deliberating over respective contentions, we are of the
opinion that the following explanation furnished by the respondents on G
various facets ensures data protection and security to a considerable
extent:
(a) CIDR
208. Regulation 3(i) & (j) of Aadhaar (Data Security) Regulation
2016 enables partitioning of CIDR network into zones based on risk and H
334 SUPREME COURT REPORTS [2018] 8 S.C.R.

A trust and other security measures. CIDR being a computer resource is

notified to be a “Protected System” under Section 70 of the IT Act,
2000 by the Central Government on 11.12.2015. Anyone trying to
unlawfully gain access into this system is liable to be punished with 10
years imprisonment and fine. The storage involves end to end encryption,
logical partitioning, firewalling and anonymisation of decrypted biometric
B
data. Breaches of penalty are made punitive by Chapter VII of the Act.
Biometric information is deemed to be an “electronic record”, and
“Sensitive personal data or information” under the IT Act, 2000. There
are further guards under The Aadhaar ( Data Security )Regulation, 2016.
(b) Requesting Entities (AUA and KUA)
C
209. Other identity information is shared with Requesting Entity
(AUAs and KUAs) only for the limited purpose of authentication. The
data is transferred from the RE to the ASA (Authentication Service
Agency) to the CIDR in an encrypted manner through a leased line
circuitry using secure Protocols (Regulation 9 of the Authentication
D Regulations). The storage of data templates is in safely located servers
with no public internet inlet/outlet, and offline storage of original encrypted
data (PID blocks). There are safety and security provisions such as
audit by Information Systems Auditor. REs are appointed through
agreement. REs can enter into agreement with sub-AUA or sub-KUA
E with permission of the of UIDAI. Whatever identity information is
obtained by the requesting entity is based on a specific consent of the
Aadhaar number holder. The e-KYC data shared with the RE can only
be after prior consent of the Aadhaar holder. Such data cannot be shared
and has to be stored in encrypted form. The biometric information used
is not permitted to be stored only the logs of authentication transactions
F are maintained for a short period. Full identity information is never
transmitted back to RE. There is a statutory bar from sharing Biometric
information [Section 29(1)(a)/ Section 29(4)]. The Data centres of ASA,
REs and CIDR should be within the territory of India.
(c) Enrolment Agencies and Registrars
G
210. The enrolment and Authentication processes are strongly
regulated so that data is secure. The Enrolment agency, which collects
the biometric and demographic of the individuals during enrolment, is
appointed either by UIDAI or by a Registrar [Section 2(s)]. The registrar
are appointed through MoUs or agreements for enrolment and are to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 335
[A. K. SIKRI, J.]

abide by a code of conduct and processes, policies and guidelines issued A

by the authority. They are responsible for the process of enrolment.
Categories of persons eligible for appointment are limited by the
Regulations. The agency employees a certified supervisor, an operator
and a verifier under Enrolment and Update Regulations. Registrars,
enrolling agencies are obliged to use the software provided or authorized
B
by UIDAI for enrolment purpose. The standard software has security
features as specified by Authority. All equipment used are as per the
specification issued by the authority. The Registrars are prohibited from
using the information collected for any purpose other than uploading the
information to CIDR. Sub-contracting of enrolment function is not
allowed. The Code of Conduct contains specific directions for following C
the confidentiality, privacy and security protocols and submission of
periodic reports of enrolment. Not only there are directions prohibiting
manipulation and fraudulent practices but the Act contains penal
provisions for such violations in Chapter VII of the Regulations. The
enrolment agencies are empanelled by the authority. They are given an
D
enrolling agency code using which the Registrar can onboard such agency
to the CIDR. The enrolment data is uploaded to the Central Identities
Data Repository (CIDR) certified equipment and software with a digital
signature of the registrar/enrolling agency. The data is encrypted
immediately upon capture. The decryption key is with the UIDAI solely.
Section 2(ze) of the IT Act, which defines ‘secure systems’ and Section E
2(w) of the Act, which defines ‘intermediaries’ apply to the process.
(d) Authentication Service Agency
211. Authentication only becomes available through the
Authentication Service Agency (ASA). They are regulated by the
Aadhaar (Authentication) Regulations, 2016. Their role and F
responsibilities are provided by Authentication Regulation 19. They are
to use certified devices, equipment, or software are duly registered with
or approved or certified by the Authority/agency. The systems and
operations are audited by information system auditor. The REs pass the
encrypted data to the CIDR through the ASA and the response (Yes/No G
authentication or e-KYC information) also takes the same route back.
The server of the ASA has to perform basic compliance and completeness
checks on the authentication data packet before forwarding it to the
CIDR.

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336 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (e) Hacking
212. As far as hacking is concerned, the respondents submit that
the authority has involved adequate firewalling and other safety features.
The biometric data stored in the CIDR is stored offline. Only templates
are online. So far there has been no incidence of hacking. However, the
B authority is conscious of the hackers and it constantly updates itself to
safe guard the data.
It may, however, be mentioned that of late certain reports have
appeared in newspapers to the effect that some people could hack the
website of CIDR, though it is emphatically denied by the UIDAI. Since
C there are only newspapers reports to this effect which appeared after
the conclusion of hearing in these cases and, therefore, parties could not
be heard on this aspect, we leave this aspect of the matter at that with a
hope that CIDR would find out the ways and means to curb any such
tendency.
D (f) Biometric Solution Providers
213. With respect to foreign companies owning software,
Respondents submit that UIDAI has entered into licensing agreements
with foreign biometric solution providers (BSP) for software. Even
thought the source code of the software are retained by the BSP as it
E constitutes their Intellectual property, the data in the server rooms is
secure as the software operates automatically and the biometric data is
stored offline. There is no opportunity available to BSP to extract data
as they have no access to it.
Substantive, Procedural or Judicial Safeguards:
F 214. Another grievance of the petitioners is that the Act lacks any
substantive, procedural or judicial safeguards against misuse of
individual data. Section 23(2)(k) which allows sharing information of
Aadhaar holders, in such manner as may be specified by regulations.
This means individual’s identity information can be shared with the
government. This may include demographic and core biometric
G
information, include aspects such as DNA profiles, handwriting, voice-
print etc., (in the future). Subsequent linkage with various state and non-
state actors that interact with such individual may enable UIDAI to
share greater information. The police can easily gain access to all
biometric information, bank accounts of the individual, all mobile phones,
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 337
[A. K. SIKRI, J.]

and meta data associated with any associated linkages, information relating A
to all mutual funds, policies etc., information relating to travel by air or
by rail by such person and so on.
215. In other cases of collection of information of this kind under
other laws, there are exhaustive legal procedures. For example, Section
73 of the Indian Evidence Act, 1872 which allows the taking of B
handwriting samples only if necessary “for the purposes of any (specific
) investigation”, or in order to compare writing or signature that appears
in relation to the facts of a particular case. Section 53 of the CrPC
allows medical examination of a person arrested on a charge of
committing an offence if reasonable grounds exist for believing that an
examination of his person will afford evidence as to the commission of C
the offence. Similarly provisions in various other statutes such as of the
Foreign Exchange Regulation Act, 1973 (Sections 34-48); the Prevention
of Money-Laundering Act, 2002 (Sections 17-19); the Narcotic Drugs
and Psychotropic Substances Act, 1985 (Sections 41-42) and the
Customs Act, 1962 (Chapter 13) which allow for search, seizure or even D
arrest, and thereby provide access to personal information also bear a
nexus with a particular crime under investigation.
216. As per the petitioners, the Investigating Agency can presently
access fingerprints, only limited to cases of citizens who were arrested
on the reasonable basis of having committed a crime, or were convicted E
of a crime, as per provisions of the Identification of Prisoners Act. In all
such circumstances, not only are there adequate safeguards- such as
permission from the Magistrate that collection is necessary for the purpose
of investigation, but persons accused of an offence presently can claim
protection under Article 20(3), thereby making it incumbent upon the
investigating agency to obtain such information in accordance with law, F
as described above. Further, unlike the Aadhaar Act, present day criminal
statutes contain provisions for destruction of some kinds of core biometric
data obtained [Section 7 of the Identification of Prisoners Act, 1920].
No such safeguards exist under the Aadhaar Act.
217. It is also argued that Section 33(2), which permits disclosure G
of identity information and authentication records under direction of an
officer not below the rank of Jt. Secretary to Central Government in the
interest of national security, has no provision for judicial review. The
Oversight Committee does not have a judicial member.
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338 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 218. Respondents submitted that Section 29 of the Aadhaar Act

provides protection against disclosure of core biometric information. The
biometric information cannot shared with anyone for any reason
whatsoever; or used for any purpose other than generation of Aadhaar
numbers and authentication under this Act. Section 8 ensure that the
during authentication, biometric information of an individual is only used
B
for submission to the Central Identities Data Repository.
219. We are of the view that most of the apprehensions of the
petitioners stand assuaged with the treatment which is given by us to
some of the provisions. Some of these are already discussed above and
some provisions are debated in the next issue. Summary thereof,
C however, can be given hereunder:
(a) Authentication records are not to be kept beyond a period of
six months, as stipulated in Regulation 27(1) of the
Authentication Regulations. This provision which permits
records to be archived for a period of five years is held to be
D bad in law.
(b) Metabase relating to transaction, as provided in Regulation 26
of the aforesaid Regulations in the present form, is held to be
impermissible, which needs suitable amendment.

E (c) Section 33 of the Aadhaar Act is read down by clarifying that

an individual, whose information is sought to be released, shall
be afforded an opportunity of hearing.
(d) Insofar as Section 33(2) of the Act in the present form is
concerned, the same is struck down.
F (e) That portion of Section 57 of the Aadhaar Act which enables
body corporate and individual to seek authentication is held to
be unconstitutional.
(f) We have also impressed upon the respondents, as the discussion
hereinafter would reveal, to bring out a robust data protection
G regime in the form of an enactment on the basis of Justice
B.N. Srikrishna (Retd.) Committee Report with necessary
modifications thereto as may be deemed appropriate.
220. With the removal of the aforesaid provisions from the statute
and the Rules, coupled with the statement of the Authority on affidavit
H that there is no record of any transactions carried out by the individuals
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 339
[A. K. SIKRI, J.]

which is even known (and, therefore, no question of the same being A

retained by the Authority), most of the apprehensions of the petitioners
are taken care of. At the same time, we may remind ourselves of the
judgment in G. Sundarrajan v. Union of India & Ors.78. In that case,
the Court noted the safety and security risk in the setting up of the
nuclear power plant in the backdrop of Fukushima disaster and Bhopal
B
Gas tragedy. Yet, keeping in view the importance of generation of nuclear
energy, the Court observed that a balance should be struck between
production of nuclear energy which was of extreme importance for the
economic growth, alleviation of poverty, generation of employment, and
the smaller violation to right to life under Article 21. It took note of the
opinion of experts committee and observed that ‘adequate safety C
measure’ have been taken. It noted huge expenditure of money running
into crores and observed ‘apprehension however legitimate it may be,
cannot override the justification of the project. Nobody on this earth can
predict what would happen in future and to a larger extent we have to
leave it to the destiny. But once the justification test is satisfied, the
D
apprehension test is bound to fail. Apprehension is something we
anticipate with anxiety or fear, a fearful anticipation, which may vary
from person to person’. The Court also held that ‘nuclear power plant is
being established not to negate right to life but to protect the right to life
guaranteed under Article 21 of the Constitution. No doubt, the Court
took a view that this interest of people needed to be respected for their E
human dignity which was divinity. However, it was also stressed that
generation of nuclear energy was a nuclear necessity and the project
was for larger public benefit and consequently, individual interest or
smaller public interest must yield. In such a situation, necessity for
‘adequate care, caution, and monitoring at every stage’ and ‘constant
F
vigil’ was emphasised. Safety and security was read into Article 21.
Acknowledging that proportionality of risk may not be ‘zero’, regard
being had to the nature’s unpredictability, the Court ruled that all efforts
must be made to avoid disaster by observing the highest degree of
constant alertness. In the directions of the Court, it was observed that
‘maintaining safety is an ongoing process not only at the design level but G
also during the operation’. In the present case as well, we have come to
the conclusion that Aadhaar Act is a beneficial legislation which is aimed
at empowering millions of people in this country. The justification of this
project has been taken note of in detail, which the subsequent discussion
78
(2013) 6 SCC 620 H
340 SUPREME COURT REPORTS [2018] 8 S.C.R.

A shall also demonstrate. In such a scenario only on apprehension, the

project cannot be shelved. At the same time, data protection and data
safety is also to be ensured to avoid even the remote possibility of data
profiling or data leakage.
221. Notwithstanding the statutory provision discussed above, we
B are of the view that there is a need for a proper legislative mechanism
for data protection. The Government is not unmindful of this essential
requirement. During the arguments it was stated by Mr. K.K. Venugopal,
learned Attorney General, that an expert committee heading by Justice
B.N. Srikrishna (Retd.) was constituted which was looking into the
matter. The said Committee has since given its report.
C
222. In this behalf, it may be worthwhile to mention that one of
the first comprehensive reports on data protection and informational
privacy was prepared by the Group of Experts 79 constituted by the
Planning Commission of India under the Chairmanship of Retd. Justice
A.P. Shah, which submitted a report on 16 October, 2012. The five salient
D features of this report were expected to serve as a conceptual foundation
for legislation protecting privacy. The framework suggested by the expert
group was based on five salient features: (i) Technological neutrality
and interoperability with international standards; (ii) Multi-Dimensional
privacy; (iii) Horizontal applicability to state and non-state entities; (iv)
E Conformity with privacy principles; and (v) A co-regulatory enforcement
regime.
223 The Union Government, on 31 July 2017, had constituted a
committee chaired by Retd.Justice B N Srikrishna, former Judge of the
Supreme Court of India to review data protection norms in the country
F and to make recommendations. The Committee recently released its
report and the first draft of the Personal Data Protection Bill, 2018
which comprehensively addresses the processing of personal data where
such data has been collected, disclosed, shared or otherwise processed
within the territory of India. The bill has incorporated provisions and
principles from the Europe’s General Data Protection Regulation
G (EUGDPR).
224. The Draft Bill replaces the traditional concepts of data
controller i.e. the entity which processes data and data subject i.e. the
79
“Report of the Group of Experts on Privacy” (16 October, 2012), Government of
India, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 341
[A. K. SIKRI, J.]

natural person whose data is being collected, with data ‘fiduciary’ and A
data ‘principal’. It aims to create a trust-based relationship between the
two.
225. The Bill largely incorporates data protection principles from
the EUGDPR and EU data protection jurisprudence, including fair and
reasonable processing of data, purpose limitation, collection limitation, B
lawful processing, storage limitation, data quality and accountability. The
Draft bill and the report cull out rights and obligations of the data fiduciary
and data controller respectively. These rights include the right to access
and correction, the right to data portability and right to be forgotten – a
right to prevent or restrict disclosure of personal data by a fiduciary.
Most importantly, consent has been given a crucial status in the draft C
data protection law. Thus, a primary basis for processing of personal
data must be individual consent. This consent is required to be free,
informed, specific, clear and, in an important addition, capable of being
withdrawn. The Authority under the Bill is obligated and empowered to
ensure protection of data from misuse and compromise. D
226. Processing of biometric data, classified as ‘Sensitive Personal
Data’ (SPD), by the data fiduciary mandates additional safeguards
(mentioned under Chapter IV of the Bill). For example, the data fiduciary
is required to undertake Data Protection Impact Assessment under the
provisions of the Bill. The Draft Bill allows processing of biometric data E
for the exercise of any function of the State authorised by law for the
provision of any service or benefit to the data principal. Special provisions
to protect sensitive and personal data of children also exist. For example,
Data fiduciaries shall be barred from profiling, tracking, or behavioural
monitoring of, or targeted advertising directed at, children and undertaking
any other processing of personal data that can cause significant harm to F
the child.
227. For security of data and protection of breach, the Draft Bill
has separate provisions which require use of methods such as de-
identification and encryption and other steps necessary to protect the
integrity of personal data and to prevent misuse, unauthorised access to, G
modification, disclosure or destruction of personal data. The data fiduciary
is required to immediately notify the Authority of any personal data breach
relating to any personal data processed by the data fiduciary where
such breach is likely to cause harm to any data principal. It also
incorporates a provision for Grievance Redressal. H
342 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 228. The Draft Bill creates several exceptions and exemptions

for processing data by the State. These are situations where rights and
obligations of data principals and data fiduciaries may not apply in totality.
Such situations include national security, prevention of crime, allocation
of resources for human development, protection of revenue, etc. The
committee asserts that such exceptions have been envisaged in the
B
Puttaswamy judgement as legitimate interests of the state and satisfy
the proportionality test.
229. The Srikrishna Committee Report and the Draft Data
Protection Bill are the first articulation of a data protection law in our
country. They have incorporated many of the progressive data protection
C principles inspired by the EUGDPR. There may be indeed be scope for
further fine tuning of this law through a consultative process, however,
we are not far away from a comprehensive data protection regime which
entrenches informational and data privacy within our laws and legal
system. We hope that there would be a robust statutory regime in place
D in near future.
230. The aforesaid discussion leads us to hold that the protection
that there is going to be a surveillance state created by the Aadhaar
project is not well founded, and in any case, taken care of by the diffluence
exercise carried out with the striking down certain offending provisions
E in their present form.
Privacy:
Whether Aadhaar Act violates right to privacy and is
unconstitutional on this ground?

F (This issue is considered in the context of Section 7 and Section

8 of the Act.)
231. The petitioners submit that right to privacy and dignity and
individual autonomy have been established by various cases. In Gobind
v. State of M.P.80, this Court held:
G “the significance of man’s spiritual nature, of his feelings and of
his intellect and that only a part of the pain, pleasure, satisfaction
of life can be found in material things and therefore they must be
deemed to have conferred upon the individual as against the
Government, a sphere where he should be let alone.
80
(1975) 2 SCC 148
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 343
[A. K. SIKRI, J.]

xx xx xx A
24. Any right to privacy must encompass and protect the personal
intimacies of the home, the family, marriage, motherhood,
procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give analytical
picture of the distinctive characteristics of the right of privacy. B
Perhaps, the only suggestion that can be offered as unifying
principle underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the concept
of ordered liberty.
25. Rights and freedoms of citizens are set forth in the Constitution C
in order to guarantee that the individual, his personality, and those
things stamped with his personality shall be free from official
interference except where a reasonable basis for intrusion exists.
“Liberty against Government” a phrase coined by Professor
Corwin expresses this idea forcefully. In this sense, many of the
fundamental rights of citizens can be described as contributing to D
the right to privacy.
26. As Ely says:
“There is nothing to prevent one from using the word ‘privacy’ to
mean the freedom to live one’s life without governmental E
interference. But the Court obviously does not so use the term.
Nor could it, for such a right is at stake in every case.”
232. To recapitulate briefly, the judgment of K.S. Puttaswamy
has affirmed the following –
(i) privacy has always been a natural right, and the correct position F
has been established by a number of judgments starting from Gobind.
Privacy is a concomitant of the right of the individual to exercise control
over his or her personality. Equally, privacy is the necessary condition
precedent to the enjoyment of any of the guarantees in Part III. The
fundamental right to privacy would cover at least three aspects—(i)
G
intrusion with an individual’s physical body, (ii) informational privacy and
(iii) privacy of choice. Further, one aspect of privacy is the right to
control the dissemination of personal information. Every individual should
have a right to be able to control exercise over his/her own life and
image as portrayed in the world and to control commercial use of his/her
identity. H
344 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) The sanctity of privacy lies in its functional relationship with

dignity. Privacy ensures that a human being can lead a life of dignity by
securing the inner recesses of the human personality from unwanted
intrusions. While the legitimate expectation of privacy may vary from
intimate zone to the private zone and from the private to the public arena,
it is important to underscore that privacy is not lost or surrendered merely
B
because the individual is in a public place. Privacy is a postulate of dignity
itself. Privacy concerns arise when the State seeks to intrude into the
body and the mind of the citizen.
(iii) Privacy as intrinsic to freedom, liberty and dignity. The right
to privacy is inherent to the liberties guaranteed by Part-III of the
C
Constitution and privacy is an element of human dignity. The fundamental
right to privacy derives from Part-III of the Constitution and recognition
of this right does not require a constitutional amendment. Privacy is
more than merely a derivative constitutional right. It is the necessary
basis of rights guaranteed in the text of the Constitution.
D
(iv) Privacy has both positive and negative content. The negative
content restrains the State from committing an intrusion upon the life
and personal liberty of a citizen. Its positive content imposes an obligation
on the State to take all necessary measures to protect the privacy of the
individual.
E
(v) Informational Privacy is a facet of right to privacy. The old
adage that ‘knowledge is power’ has stark implications for the position
of individual where data is ubiquitous, an all-encompassing presence.
Every transaction of an individual user leaves electronic tracks, without
her knowledge. Individually these information silos may seem
F inconsequential. In aggregation, information provides a picture of the
beings. The challenges which big data poses to privacy emanate from
both State and non-State entities.
(vi) Right to privacy cannot be impinged without a just, fair and
reasonable law. It has to fulfil the test of proportionality i.e. (i) existence
G of a law (ii) must serve a legitimate State aim and (iii) proportionate.
233. We have also remarked, in paragraph 85 above, the taxonomy
of privacy, namely, on the basis of ‘harms’, ‘interest’ and ‘aggregation
of rights’. We have also discussed the scope of right to privacy with

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 345
[A. K. SIKRI, J.]

reference to the cases at hand and the circumstances in which such a A

right can be limited. In the process, we have also taken note of the
passage from the judgment rendered by Nariman, J. in K.S. Puttaswamy
stating the manner in which law has to be tested when it is challenged on
the ground that it violates the fundamental right to privacy. Keeping in
mind all these considerations and parameters, we proceed to deal with
B
the argument on right to privacy.
234. It is argued that the Aadhaar project, during the pre-Act
period (2009/10 – July, 2016), violated the Right to Privacy with respect
to personal demographic as well as biometric information collected, stored
and shared as there was no law authorizing these actions. In a digital
C
society an individual has the right to protect herself by controlling the
dissemination of such personal information. Compelling an individual to
establish her identity by planting her biometric at multiple points of service
violates privacy involving the person. The seeding of Aadhaar in distinct
data bases enables the content of information about an individual that is
stored in different silos to be aggregated. This enables the State to build D
complete profiles of individuals violating privacy through the convergence
of data.
235. It is also contended that the citizen’s right to informational
privacy is violated by authentication under the Aadhaar Act inasmuch as
the citizen is compelled to ‘report’ her actions to the State. Even where E
a person is availing of a subsidy, benefit or service from the State under
Section 7 of the Act, mandatory authentication through the Aadhaar
platform (without an option to the citizen to use an alternative mode of
identification) violates the right to informational privacy. An individual’s
rights and entitlements cannot be made dependent upon an invasion of
his or her bodily integrity and his or her private information which the F
individual may not be willing to share with the State. The bargain
underlying section 7 is an unconscionable, unconstitutional bargain. Section
7 is against the constitutional morality contained in both Part III as well
the Part IV of the Constitution of India.
236. It was also highlighted that today the fastest growing G
businesses are network orchestrators, the likes of Facebook and Uber,
which recreate a network of peers in which participants interact and
share value in creation. The most important assets for these network
orchestrators is information. Although, individuals share information with
these entities, such information is scattered, not concentrated in a single H
346 SUPREME COURT REPORTS [2018] 8 S.C.R.

A authority or aggregated. If information, collected in different silos is

aggregated and centralized, it can afford easy access to a person’s
complete profile, including her social groups, proclivities, habits,
inclinations, tastes etc. The entity that holds the key to such information
would then be in an extremely powerful position, especially if such entity
is the State. Since informational privacy is a part of Right to Privacy, it
B
had to be saved. The peittioners pointed out that the significance of
information being aggregated was noted by Hon’ble Court in K.S.
Puttaswamy as follows:
“300 ...Yet every transaction of an individual user and every site
that she visits, leaves electronic tracks generally without her
C knowledge. These electronic tracks contain powerful means of
information which provide knowledge of the sort of person that
the user is and her interests. Individually, these information silos
may seem inconsequential. In aggregation, they disclose the nature
of the personality: food habits, language, health, hobbies, sexual
D preferences, friendships, ways of dress and political affiliation. In
aggregation, information provides a picture of the being: of things
which matter and those that don’t, of things to be disclosed and
those best hidden…
xx xx xx
E 305. Daniel J Solove deals with the problem of “aggregation”.
Businesses and governments often aggregate a variety of
information fragments, including pieces of information which may
not be viewed as private in isolation to create a detailed portrait of
personalities and behaviour of individuals. Yet, it is now a universally
F accepted fact that information and data flow are “increasingly
central to social and economic ordering”. Individuals are identified
with reference to tax records, voting eligibility, and government-
provided entitlements. There is what is now described as “‘veillant
panoptic assemblage’, where data gathered through the ordinary
citizen’s veillance practices finds its way to state surveillance
G mechanisms, through the corporations that hold that data.”
237. It was further argued that test of proportionality was not
satisfied as the extent of information collected is not proportionate to the
‘compelling interest of the State’. Various judgments were citied where
the principle of proportionality has been established by this court. In
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 347
[A. K. SIKRI, J.]

Chairman, All India Railway Recruitment Board v. K Shyam Kumar A

and others81, this Court held as follows:
“37. ...Proportionality requires the court to judge whether action
taken was really needed as well as whether it was within the
range of courses of action which could reasonably be followed.
Proportionality is more concerned with the aims and intention of B
the decision-maker and whether the decision-maker has achieved
more or less the correct balance or equilibrium. The court entrusted
with the task of judicial review has examine whether decision
taken by the authority is proportionate i.e. well balanced and
harmonious, to this extent the court may indulge in a merit review
and if the court finds that the decision is proportionate, it seldom C
interferes with the decision taken and if it finds that the decision is
disproportionate i.e. if the court feels that it is not well balanced
or harmonious and does not stand to reason it may tend to
interfere.”
238. Attention was also drawn to the judgment in Modern Dental D
College & Research Centre, wherein this Court established the four-
limb test of proportionality. It was argued that Aadhaar failed to meet
the test laid down therein.
239. According to the petitioners, there is no compelling state
interest for State to know the details of the location and time of using E
Aadhaar authentication. Likewise, there are various other methods
available for identification. Submission was that one of the objects of the
Aadhaar project is to ensure targeted delivery in the disbursement of
government subsidies benefits and services in India. Identification for
this purpose can be carried out by various other identity documents issued F
by the government of India, such as passport, voting card, ration card,
driving license, job card issued by NREGA duly signed by an officer of
the State government, employment certificate by a public authority, birth
certificate, school leaving certificate, PAN card, overseas Indian citizen
card/PIO/OCI of Indian origin card. There is no justification to impose
Aadhaar under as the exclusive means of identification under Section 7, G
without which a person would be unable to secure her entitlements.
Such mandate would not only infringe upon the privacy of a person and
violate a person’s fundamental rights, but would also unreasonably deprive
81
(2010) 6 SCC 614
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348 SUPREME COURT REPORTS [2018] 8 S.C.R.

A a person of her entitlements on a ground that has little connection with

her right to receive such entitlements.
240. Judgment in the case of Jordan & Ors v. State82 was also
cited wherein Sachs & O’Regan JJ. concurringly held that continuum
of privacy rights start with the inviolable inner self, move to the
B home, and end with the public realm; and that commitment to
dignity invests great value in the inviolability and worth of the body.
Decisional privacy allows individuals to make decisions about their
own body, and is an aspect of right to self determination. It is
underscored by personal autonomy, which prevents the State from
using citizens as puppets and controlling their body and decisions.
C Informational privacy deals with a person’s mind and comprises of
(i) anonymity, (ii) secrecy, and (iii) freedom. It is premised on the
assumption that all information about a person is in a fundamental
way her own, for her to communicate or retain for herself as she
sees fit.
D 241. It was submitted that privacy rights against both the State
and non-State actors. There is a qualitative difference between right to
privacy against the State and against Non-state actors. Subba Rao. J’s
dissent in Kharak Singh, was relied upon wherein it was stated that the
existence of concentrated and centralized State power, rather than its
E actual or potential use that creates the chilling effect and leads to
psychological restraint on the ability of citizens to think freely. Therefore,
individuals have a higher expectation of privacy from the State. In the
vein, it was further submitted that the State was imposing disproportionate
and unreasonable State compulsion. States do not have the power to
compel their citizens to do particular acts, except in a narrow
F range of defined circumstances. As sentinels on the qui vive,
Courts are duty bound to protect citizens against State compulsion,
whether in the context of forcibly undergoing narco-analysis/lie
detectors tests or forcibly undergoing sterilization. Compulsion can be
used in limited circumstances such as punishment for law-breaking,
G compulsion in the aid of law enforcement, and compulsion to
prevent potential law-breaking. These include fines, imprisonment,
fingerprint collection for criminals and prisoners. Even in medical
jurisprudence, the case of Common Cause v. Union of India83 elaborates
82
(2002) ZACC 22
83
Writ Petition (Civil) No. 215 of 2005
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 349
[A. K. SIKRI, J.]

on the concepts of dignity, bodily integrity and decisional autonomy. For A

DNA tests and blood tests to be conducted a high standard of evidence
is required. Similarly ‘refusal of treatment’ is a constitutionally protected
liberty interest in the United States of America as stated in the case of
Cruzan v. Director, Missouri Dept. of Health84.
242. The petitioners further submitted that although the Aadhaar B
Act is ostensibly framed as a voluntary entitlement to establish one’s
identity under section 3 read with Section 4(3) of the Aadhaar Act, the
actions of the Executive and private entities under sections 7 and 57
have made possession of Aadhaar de facto mandatory. Residents
have thus been forced to obtain an Aadhaar number, for continued
access to statutory entitlements and services. 252 government C
schemes have been notified by various Ministries/Departments of
the Central Government under section 7 (as on 30.11.2017) requiring
Aadhaar as a condition precedent for availing services, subsidies and
benefits including for persons with disabilities, for SC/STs, and for
rehabilitation of Manual Scavengers. It has also been made mandatory D
for mobile services, banking and tax payments, registration of students
of CBSE, amongst other things. It thus pervades every aspect of an
individual’s life. Concomitantly, there is no opt out option in the
Aadhaar Act, which makes consent irrevocable and deprives
individuals the ability to make decisions about their life.
E
243. As per the petitioners, this kind of mandatory nature of Section
7 violates Article 14. They submit that mandatory authentication has
caused, and continues to cause, exclusion of the most marginalized
sections of society. Proof of possession of an enrolment number or
undergoing Aadhaar authentication is a mandatory pre-requisite for
receiving subsidised food grain under the National Food Security F
Act. It creates “undue burden” on citizen which is unconstitutional.
Successful monthly authentication is contingent on harmonious working
of all attendant Aadhaar processes and technologies–i.e. correct
Aadhaar-seeding, successful fingerprint recognition, mobile and
wireless connectivity, electricity, functional POS machines and server G
capacity–each time. It is also dependant on age, disability (e.g.leprosy),
class of work (e.g. manual labour), and the inherently probabilistic
nature of biometric. Economic Survey of India 2016 reports that
authentication failures have been as high as 49% in Jharkhand and
84
497 US 361 (1990)
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350 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 37% in Rajasthan, recognising that “failure to identify genuine

beneficiaries results in exclusion error”.
244. The exclusion is not simply a question of poor
implementation that can be administratively resolved, but stems
from the very design of the Act, i.e. the use of biometric
B authentication as the primary method of identification. Determination
of legal entitlements is contingent on a positive authentication response
from the UIDAI. Biometric technology does not guarantee 100%
accuracy and is fallible, with inevitable false positives and false
negatives that are design flaws of such a probabilistic system,
especially because biometrics also change over time.
C
245. Classification caused by the Act lacks rational nexus.
The entitlement of an individual depends upon status, and not proof
of identity. At the point of use, The Biometric Authentication divides
residents into two classes: those who have and do not have
Aadhaar; and those who authenticate successfully, and those who
D do not. Given that the probability of biometric mismatch is greatest
for the aged, disabled, and individuals engaging in manual labour –
amongst the most vulnerable sections of society–the decision to
use periodic biometric authentications has a direct and disparate
effect of violating fundamental rights of this class. This division
E bears no rational nexus with the question of status for receiving
benefits. It leads to under-inclusion, and is thus arbitrary, causing an
Article 14 violation.
246. It is also argued that mandatory nature of Section 7 violates
Article 21 as well. The Aadhaar Act alters the entire design &
F institutional structure through which residents were receiving
entitlements. Mandatory imposition of Aadhaar violates their rights
to choose how to identify themselves to the government in a
reasonable and non-intrusive fashion. On making Aadhaar mandatory,
instead of the citizen’s right to food and a correlative duty on the
State to take action to ensure the proper fulfilment of such rights,
G the State is exercising its power to convert the constitutional rights
of its citizens into liabilities.
247. As per the petitioners, having established the infringement of
Article 21, the invasion is not justified under the principle of
proportionality. The State’s primary justification of eliminating welfare
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 351
[A. K. SIKRI, J.]

leakages and ensuring “better targeting” does not stand up to judicial A

scrutiny.
First, it has failed to discharge its burden of showing that the
purported leakages were exclusively caused due to identity fraud,
and that those leakages would not exist if Aadhaar is implemented.
The state has not given any empirical data. Leakages exist due to eligibility B
frauds, quantity frauds and identity frauds. Studies filed in Petitioner’s
affidavits show that eligibility and quantity frauds are the substantial
cause for leakages. Assuming that the Aadhaar Act prevents leakages,
the biometric identification system can, at best, only cure leakages related
to identity fraud. The government’s claims of savings inter alia of Rs.
14,000 crores in the PDS system, due to the deletion of 2.33 crore C
ration cards is incorrect, inflated, and based on wrong assumptions
for the following reasons:
(a) it admittedly does not have estimates of leakages in PDS,
nor has any study been done to see if POS machines are
effective in removing PDS irregularities; D

(b) it conflates issue of “bogus /ineligible ration cards” (eligibility

fraud) with identity fraud;
(c) the figure of 2.33 crore includes West Bengal, where
ration cards are issued to each person, as opposed to each E
household;
(d) a large number of these 2.33 crore cards were deleted
even before Aadhaar-integration and seeding came into effect;
(e) the savings figure includes even those eligible beneficiaries
who have been removed from the list due to failure to link F
Aadhaar properly; and
(f) it does not value the cost of loss of privacy. Most
importantly, the basis for reaching such savings figure has not
been disclosed.
Similarly, incorrect averments have been made in the context G
of LPG savings, using Aadhaar-enabled Direct Benefit Transfer
(‘DBT’) scheme known as PAHAL.
Secondly, it has failed to show how the introduction of
Aadhaar will stop the losses causes on any of the grounds above.
Aadhaar is susceptible to its own unique forms of mischief by the vendor. H
352 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Thirdly, the State has failed to demonstrate that other, less

invasive ways would be significantly worse at addressing the problem,
especially given recent studies that found a significant reduction in
PDS leakages, due to innovations devised to work within the PDS
system; alternatives such as food coupons, digitisation of records,
doorstep delivery, SMS alerts, social audits, and toll-free helplines
B
have not been looked at.
Fourthly, the absence of proportionality is further established
by the fact of systematic exclusion.
248. The respondents refuted, in strongest possible manner, all
C the aforesaid submissions in the following manner:
(i) No reasonable expectation of privacy
At the outset it was argued that Right to Privacy exists when
there is a reasonable expectation of privacy. K.S. Puttaswamy judgment,
US case law, UK case laws and the European cases on Article 8 of
D ECHR were referred to to determine the contours of reasonable
expectation of privacy. Submission was that the Act operates in the
public and relational sphere and not in the core, private or personal sphere
of residents. It involves minimal identity information for effective
authentication. The purpose is limited to authentication for identification.
E Section 29 of the Aadhaar Act, 2016 provides protection against disclosure
of identity information without the prior consent of the ANH concerned.
Sharing is intended only for authentication purposes. It was also submitted
that there is no reasonable expectation of privacy with respect to identity
information collected under the Aadhaar Act for the purposes of
authentication and therefore Article 21 is not attracted.
F
249. The respondents point out that four types of information
collected for providing Aadhaar (i). Mandatory demographic information
comprising name, date of birth, address and gender [Section 2(k) read
with Regulation 4(1) of the Aadhaar (Enrolment and Update) Regulations,
2016]; (ii) Optional demographic information [Section 2(k) read with
G Regulation 4(2) of the Aadhaar (Enrolment and Update) Regulations,
2016]. (iii) Non-core biometric information comprising photograph. (iv)
Core biometric information comprising finger print and iris scan.
250. Demographic information, both mandatory and optional, and
photographs does not raise a reasonable expectation of privacy under
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 353
[A. K. SIKRI, J.]

Article 21 unless under special circumstances such as juveniles in conflict A

of law or a rape victim’s identity. Today, all global ID cards contain
photographs for identification alongwith address, date of birth, gender
etc. The demographic information is readily provided by individuals
globally for disclosing identity while relating with others and while seeking
benefits whether provided by government or by private entities, be it
B
registration for citizenship, elections, passports, marriage or enrolment
in educational institutions. Email ids and phone numbers are also available
in public domain, For example in telephone directories. Aadhaar Act
only uses demographic information which are not sensitive and where
no reasonable expectation of privacy exists - name, date of birth, address,
gender, mobile number and e mail address. Section 2(k) specifically C
provides that Regulations cannot include race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history.
Thus, sensitive information specifically stand excluded.
251. Face Photographs for the purpose of identification are not
covered by a reasonable expectation of privacy. Barring unpublished D
intimate photographs and photographs pertaining to confidential situations
there will be no zone of privacy with respect to normal facial photographs
meant for identification. Face-photographs are given by people for driving
license, passport, voter id, school admissions, examination admit cards,
employment cards, enrolment in professions and even for entry in courts.
In our daily lives we recognize each other by face which stands exposed E
to all, all the time. The face photograph by itself reveals no information.
252. There is no reasonable expectation of privacy with respect
to fingerprint and iris scan as they are not dealing with the intimate or
private sphere of the individual but are used solely for authentication.
Iris scan is nothing but a photograph of the eye, taken in the same manner F
as a face photograph. Fingerprints and iris scans are not capable of
revealing any personal information about the individual except for serving
the purpose of identification. Fingerprints are largely used in biometric
attendance, laptops and mobiles. Even when a privacy right exists on a
fingerprint, it will be weak. Finger print and iris scan have been considered G
to be the most accurate and non-invasive mode of identifying an individual.
They are taken for passports, visa and registration by the State and also
used in mobile phones, laptops, lockers etc for private use. Biometrics
are being used for unique identification in e passports by 120 countries.

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354 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) Least intrusive and strict scrutiny tests do not apply in the
proportionality test.
Learned Attorney General argued that the “least intrusive test” is
not applicable while asserting the test of proportionality. He relied on
various U.S. Supreme Court judgments which explicitly rejected the test
B and the case of Modern Dental College & Research Centre which
does not use the least intrusive measure test while undertaking the
proportionality test.
Mr.Dwivedi contends that the least intrusive means of achieving
the state object, while carrying out the proportionality test, has been
C rejected by Indian courts in a catena of decisions as it involves a value
judgment or second guessing of the Legislation. Such a test violates the
separation of powers between the legislature and the judiciary. Even
assuming that the ‘least intrusive method’ test applies, the exercise of
determining the least intrusive method of identification is a technical
exercise and cannot be undertaken in the court of law. Moreover, the
D Petitioners, who have furnished smartcards as an alternative, have not
established that smartcards are less intrusive than the Aadhaar card
authentication process.
The argument of applying the ‘Strict Scrutiny Test’ to test the
Constitutionality of the Aadhaar Act by the Petitioners was flawed. Strict
E scrutiny test is a test conceptualised in the United States, only applied to
‘super suspect legislations’. This compulsion arises because the scope
of reasonable restrictions not having been specified specifically in the
U.S. Constitution. That leaves the scrutiny of the Legislations by the
courts based on the due process clause in the U.S. Constitution. Such a
F test does not have applicability in India. In Ashoka Kumar Thakur (2008)
6 SCC 1, the court referred to the test of strict scrutiny, narrow tailoring
and compelling interest and observed that these principles cannot be
applied directly to India as affirmative action is Constitutionally supported.
(iii) Act satisfies Proportionality Test
G Ld. Attorney General submitted that the legitimate state interest
that the Aadhaar Act fulfils are prevention of leakages and dissipation of
subsidies and social welfare benefits that are covered under Section 7
of the Aadhaar Act. He also submits that the larger public/state interest
is to be decided by the State and cannot be second guessed by the
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 355
[A. K. SIKRI, J.]

Judiciary. The state had rejected the idea of ‘smart cards’ and other A
alternative models after due deliberations.
The learned Attorney General cited various reports highlighting
leakages, wastage, high costs and inefficiencies in the Public Distribution
System, MGNREGA scheme and fuel subsidy. He cited the Thirteenth
Finance Commission Report 2010-2015 which stated that creation of a B
biometric-based unique identity for all residents in the country has
potential to address need of the government to ensure that only
eligible persons are provided subsidies and that all eligible persons are
covered. He also cited the Economic Surveys of 2014-15 and 2015-16
both of which dilated upon the benefits of Aadhaar. The 2015-16 Survey
says that the use of Aadhaar has significantly reduced leakages in C
LPG and MGNREGA with limited exclusion of the poor by linking
households’ LPG customer numbers with Aadhaar numbers to
eliminate ‘ghosts’ and duplicate households from beneficiary rolls.
The United Nations, in its report titled ‘Leaving No One Behind: the
imperative of inclusive development’, praised India’s decision of D
launching Aadhaar as it will be a step forward in ensuring inclusion of all
people especially the poorest and the most marginalized.
This court in the case of PUCL v. Union of India85 has approved
the recommendations of the High-powered committee headed by Justice
D.P Wadhwa, which recommended linking of Aadhaar with PDS E
and encouraged State Governments to adopt the same. The court
also lauded the efforts of State government for using biometric
identification. He also referred to the case of Binoy Viswam v. Union
of India86 where the economic rationale for and benefits of Aadhaar
was discussed and validated.
F
Mr. Dwivedi has argued that 3% of GDP amounting to trillions of
rupees is allocated by Governments towards subsidies, scholarships,
pensions, education, food and other welfare programmes. But
approximately half of if does not reach the intended beneficiaries. Aadhaar
is necessary for fixing this problem as there is no other identification
document which is widely and commonly possessed by the residents of G
the country and most of the identity documents do not enjoy the quality
of portability. Moreover, Aadhaar lends assurance and accuracy on
account of existence of fake, bogus and ghost cards, vide the process of
85
(2011) 14 SCC 331
86
(2017) 7 SCC 59 H
356 SUPREME COURT REPORTS [2018] 8 S.C.R.

A de-duplication and authentication. De-duplication is ensured by the three

sub systems are :- (i) demographic de-duplication (ii) multi-ABIS multi-
modal biometric de-duplication (iii) manual adjudication. Biometric system
provides high accuracy of over 99.86 %. The mixed biometric have
been adopted only to enhance the accuracy and to reduce the errors
which may arise on account of some residents either not having biometrics
B
or not having some particular biometric.
(iv) Act empowers various facets of right to life under Article 21
The Ld. Attorney General submitted that Section 7 of the Act is
traceable to Article 21 of the Constitution. Right to life is not a mere
C animal existence but the right to live with human dignity which includes
the right to food, the right to shelter, right to employment, right to medical
care, etc. Fulfilling these rights will justify the minimal invasion of the
right to privacy of the citizens.
The counsel for the respondent also referred to the case of
D G. Sundarrajan v. Union of India87 in which the petitioner therein
challenged the violation of their Right to the Life due to the risk posed by
the Kudanakulam Nuclear Plant. The court struck a balance between
production of nuclear energy, which was of extreme importance for the
economic growth, alleviation of poverty, generation of employment , and
the violation of right to life and dignity under Article 21 posed by the
E threat of a nuclear disaster. The court observed that adequate safety
measure – both in design and operation - had been taken hence the
violation of right to life was justified.
253. The argument of ‘illusory consent’ was refuted with the
submission that Section 7 of the Act which mandatorily requires Aadhaar
F for receipt of benefit, service or subsidy linked to the Consolidated Fund
of India, does not violate any Fundamental Rights. It involves a balancing
of two Fundamental Rights: the Right to Privacy and the positive obligation
of the State to ensure right to food, shelter and employment under Article
21 of the Constitution. Aadhaar enables furtherance of Article 21 by
G eliminating leakages and ensuring that no deserving individual is denied
her/his entitlement. The object of the Act i.e. the efficient, transparent
and targeted delivery of subsidies, benefits and services to genuine
beneficiaries is in, furtherance of various facets of Article 21 of the
poor people of India and in furtherance of the Directive Principles
of State Policy inter alia Articles 38,39, 41, 43, 47 and 48.
87
H (2013) 6 SCC 670
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 357
[A. K. SIKRI, J.]

254. It was further argued that Section 7 is not a restriction at all A

and it does not require any surrender of Fundamental Rights. It is merely
a regulatory procedure to receipt of subsidy, benefit or service. Section
7 purports to enliven the Fundamental Right under Article 21 , and Article
14. To achieve the goal of enlivening Fundamental Rights of the poor
and the deprived and to prevent siphoning off the benefits, service or
B
subsidy, it becomes necessary to require compliance with the condition
of undergoing authentication.
255. Section 7 of the Aadhaar Act protects right to human dignity
recognized by Article 21 of the Constitution. Aadhaar is used as means
of authentication for availing services, benefits and subsidies. Welfare
schemes funded from the consolidated fund of India such as PDS, C
scholarship, mid day meals, LPG subsidies, free education ensure that
the Right to Life and Dignity of citizens are being enforced, which
includes Justice (Social, Political and Economic). It also eliminates
inequality with a view to ameliorate the poor, Dalits and other
downtrodden classes and sections of the society. D
256. In response to the argument that Fundamental Right to
Privacy cannot be waived, the Mr.Dwivedi submits that Section 7 of the
Aadhaar Act does not involve any issue of waiver. When an individual
undergoes any authentication to establish his identity to receive benefits,
services or subsidy, he does so to enliven his Fundamental Right to life E
and personal liberty under Article 21. When an individual makes a choice
to enter into a relational sphere then his choice as to mode of identification
would automatically get restricted on account of the autonomy of the
individuals or institution with whom he wishes to relate. This is more so
where the individual seeks employment, service , subsidy or benefits.
Moreover, Aadhaar is of a Universal nature, unlike any other identification F
card which are not portable. They generally have a localized value and
limited purpose.
257. In response to the arguments of the petitioners that Aadhaar
reduces individuals to numbers, it was submitted that the Aadhaar number
is absolutely necessary for authentication and it is solely used for that G
purpose. It was argued that the petitioner have conflated the concepts
of identity and identification. Authentication is merely an identification
process and does not alter the identity of an individual. Further Aadhaar
number is a randomly generated number and bears no relation to the
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358 SUPREME COURT REPORTS [2018] 8 S.C.R.

A attributes of individuals. It is similar to an examiner allotting codes to

examinees for administrative convenience.
258. It was also argued that the State has an obligation to enlivening
right to food, right to shelter etc envisaged under Article 21 and for this
purpose they may encroach upon the right of privacy of the beneficiaries.
B The state requires to strike a fair balance between the right of privacy
and right to life of beneficiaries. An example furnished by the counsel
for this is the Prohibition Of Employment as Manual Scavengers and
their Rehabilitation Act, 2013, which restricts a scavenger’s right to
practice any profession, occupation, trade or business under Article 19(g)
is order to enliven Article 21 and 17. The counsel also gave the example
C of the practice of dwarftossing, which was banned in France. The law
was challenged on ground that it interferes with the economic right of
one practicing it. The challenge was negatived on the ground that
permitting such a practice even though voluntary will be degrading of
human dignity by Human Right Committee. Certain choices are restricted
D /prohibited by the Constitution itself (Articles 17,18, 23 and 24). Article
23 abolishes forced labour so it prohibits even those choosing to indulge
in forced labour from doing so. The aforesaid actually result in
enhancement of the Fundamental Right. The person is emancipated from
a social condition which is below human dignity. Similarly Section 7 of
the Act involves an identification for the purpose of enhancing human
E dignity.
259. In response to the argument of Aadhaar causing exclusion,
the learned Attorney General responded by saying that if authentication
fails, despite more than one attempt, then the possession of Aadhaar
number can be proved otherwise i.e. by producing the Aadhaar card.
F And those who do not have Aadhaar number can make an application
for enrolment and produce the enrolment id number).
260. Before we proceed to analyse the respective submissions, it
has also to be kept in mind that all matters pertaining to an individual do
not qualify as being an inherent part of right to privacy. Only those
G matters over which there would be a reasonable expectation of privacy
are protected by Article 21. This can be discerned from the reading of
Paras 297 to 307 of the judgment, relevant portions whereof have already
been quoted above.

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 359
[A. K. SIKRI, J.]

261. We may also clarify that the arguments of privacy are A

examined in the context of Sections 7 and 8 and the provisions related
thereto under the Aadhaar Act. Validity of the other provisions of the
Aadhaar Act, which is questioned in these proceedings, is dealt with
separately. As per Section 7 of the Aadhaar Act in case an individual
wants to avail any subsidy benefit or services, she is required to produce
B
the Aadhaar number and, therefore, it virtually becomes compulsory for
such a person. To that extent the petitioners may be right in submitting
that even if enrolment in Aadhaar is voluntary, it assumes the character
of compulsory enrolment for those who want to avail the benefits under
Section 7. Likewise, authentication, as mentioned in Section 8, also
becomes imperative. The relevant question, therefore, is as to whether C
invasion into this privacy meets the triple requirements or right to privacy.
(i) Requirement of law : The Parliament has now passed Aadhaar
Act, 2016. Therefore, law on the subject in the form of a statute very
much governs the field and, thus, first requirement stands satisfied. We
may point out at this stage that insofar as period from 2009 (when the D
Aadhaar scheme was launched with the creation of Authority vide
notification No. A-43011/02/2009-Admin. I dated January 28, 2009 till
the date Aadhaar Act came into force i.e. March 26, 2016, it is the
argument of the petitioners that insofar as this period is concerned, it is
not backed by any law and, therefore, notification dated January 28,
2009 should be struck down on this ground itself and all acts done including E
enrolment under the Aadhaar scheme from 2009 to 2016 should be
invalidated. This aspect we propose to deal at a later stage. At this
juncture, we are looking into the vires of Aadhaar Act. In that context,
the first requirement stands fulfilled.
(ii) Whether Aadhaar Act serves legitimate State aim? F

‘Introduction’ to the said Act gives the reasons for passing that
Act and the ‘Statement of Objects and Reasons’ mentions the objectives
sought to be achieved with the enactment of the Aadhaar Act.
‘Introduction’ reads as under:
G
“The Unique Identification Authority of India was established by
a resolution of the Government of India in 2009. It was meant
primarily to lay down policies and to implement the Unique
Identification Scheme, by which residents of India were to be
provided unique identity number. This number would serve as proof
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360 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of identity and could be used for identification of beneficiaries for

transfer of benefits, subsidies, services and other purposes.
Later on, it was felt that the process of enrolment, authentication,
security, confidentiality and use of Aadhaar related information
be made statutory so as to facilitate the use of Aadhaar number
B for delivery of various benefits, subsidies and services, the
expenditures of which were incurred from or receipts therefrom
formed part of the Consolidated Fund of India.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Bill, 2016 inter alia, provides for
C establishment of Unique Identification Authority of India, issuance
of Aadhaar number to individuals, maintenance and updating of
information in the Central Identities Data Repository, issues
pertaining to security, privacy and confidentiality of information
as well as offences and penalties for contravention of relevant
statutory provisions.”
D
In the Statement of Objects and Reasons, it is inter alia mentioned
that though number of social benefits schemes have been floated by the
Government, the failure to establish identity of an individual has proved
to be a major hindrance for successful implementation of those
programmes as it was becoming difficult to ensure that subsidies, benefits
E and services reach the unintended beneficiaries in the absence of a
credible system to authenticate identity of beneficiaries. The Statement
of Objects and Reasons also discloses that over a period of time, the use
of Aadhaar number has been increased manifold and, therefore, it is
also necessary to take measures relating to ensuring security of the
F information provided by the individuals while enrolling for Aadhaar card.
Having these parameters in mind, Para 5 of the Statement of Objects
and Reasons enumerates the objectives which the Aadhaar Act seeks
to achieve. It reads as under:
“5. The Aadhaar (Targeted Delivery of Financial and Other
G Subsidies, Benefits and Services) Bill, 2016 inter alia, seeks to
provide for—
(a) issue of Aadhaar numbers to individuals on providing his
demographic and biometric information to the Unique Identification
Authority of India;
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 361
[A. K. SIKRI, J.]

(b) requiring Aadhaar numbers for identifying an individual for A

delivery of benefits, subsidies, and services 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; B
(d) establishment of the Unique Identification Authority of India
consisting of a Chairperson, two Members and a Member-
Secretary to perform functions in pursuance of the objectives
above;
(e) maintenance and updating the information of individuals in the C
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 D
(g) offences and penalties for contravention of relevant statutory
provisions.”
262. After taking into consideration the Statement of Objects and
Reasons, a two Judge Bench of this Court in Binoy Viswam v. Union of
E
India & Ors.88, recapitulated the objectives of Aadhaar in the following
manner:
“125. By making use of the technology, a method is sought to be
devised, in the form of Aadhaar, whereby identity of a person is
ascertained in a flawless manner without giving any leeway to
F
any individual to resort to dubious practices of showing multiple
identities or fictitious identities. That is why it is given the
nomenclature “unique identity”. It is aimed at securing advantages
on different levels some of which are described, in brief, below:
125.1. In the first instance, as a welfare and democratic State, it
becomes the duty of any responsible Government to come out G
with welfare schemes for the upliftment of poverty-stricken and
marginalised sections of the society. This is even the ethos of
Indian Constitution which casts a duty on the State, in the form of
“directive principles of State policy”, to take adequate and effective
88
(2017) 7 SCC 59 H
362 SUPREME COURT REPORTS [2018] 8 S.C.R.

A steps for betterment of such underprivileged classes. State is bound

to take adequate measures to provide education, health care,
employment and even cultural opportunities and social standing to
these deprived and underprivileged classes. It is not that
Government has not taken steps in this direction from time to
time. At the same time, however, harsh reality is that benefits of
B
these schemes have not reached those persons for whom that
are actually meant.
125.1.1. India has achieved significant economic growth since
Independence. In particular, rapid economic growth has been
achieved in the last 25 years, after the country adopted the policy
C of liberalisation and entered the era of, what is known as,
globalisation. Economic growth in the last decade has been
phenomenal and for many years, the Indian economy grew at
highest rate in the world. At the same time, it is also a fact that in
spite of significant political and economic success which has proved
D to be sound and sustainable, the benefits thereof have not
percolated down to the poor and the poorest. In fact, such benefits
are reaped primarily by rich and upper middle classes, resulting
into widening the gap between the rich and the poor.
125.1.2. Jean Dreze and Amartya Sen pithily narrate the position
E as under [An Uncertain Glory : India and its Contradictions] :
“Since India’s recent record of fast economic growth is often
celebrated, with good reason, it is extremely important to point
to the fact that the societal reach of economic progress in
India has been remarkably limited. It is not only that the income
F distribution has been getting more unequal in recent years (a
characteristic that India shares with China), but also that the
rapid rise in real wages in China from which the working classes
have benefited greatly is not matched at all by India’s relatively
stagnant real wages. No less importantly, the public revenue
generated by rapid economic growth has not been used to
G expand the social and physical infrastructure in a determined
and well-planned way (in this India is left far behind by China).
There is also a continued lack of essential social services (from
schooling and health care to the provision of safe water and
drainage) for a huge part of the population. As we will presently
H discuss, while India has been overtaking other countries in the
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 363
[A. K. SIKRI, J.]

progress of its real income, it has been overtaken in terms of A

social indicators by many of these countries, even within the
region of South Asia itself (we go into this question more fully
in Chapter 3, ‘India in Comparative Perspective’).
To point to just one contrast, even though India has significantly
caught up with China in terms of GDP growth, its progress has B
been very much slower than China’s in indicators such as
longevity, literacy, child undernourishment and maternal
mortality. In South Asia itself, the much poorer economy of
Bangladesh has caught up with and overtaken India in terms
of many social indicators (including life expectancy,
immunisation of children, infant mortality, child C
undernourishment and girls’ schooling). Even Nepal has been
catching up, to the extent that it now has many social indicators
similar to India’s, in spite of its per capita GDP being just about
one third. Whereas twenty years ago India generally had the
second best social indicators among the six South Asian D
countries (India, Pakistan, Bangladesh, Sri Lanka, Nepal and
Bhutan), it now looks second worst (ahead only of problem-
ridden Pakistan). India has been climbing up the ladder of per
capita income while slipping down the slope of social indicators.”
125.1.3. It is in this context that not only sustainable development E
is needed which takes care of integrating growth and development,
thereby ensuring that the benefit of economic growth is reaped
by every citizen of this country, it also becomes the duty of the
Government in a welfare State to come out with various welfare
schemes which not only take care of immediate needs of the
deprived class but also ensure that adequate opportunities are F
provided to such persons to enable them to make their lives better,
economically as well as socially. As mentioned above, various
welfare schemes are, in fact, devised and floated from time to
time by the Government, keeping aside substantial amount of
money earmarked for spending on socially and economically G
backward classes. However, for various reasons including
corruption, actual benefit does not reach those who are supposed
to receive such benefits. One of the main reasons is failure to
identify these persons for lack of means by which identity could
be established of such genuine needy class. Resultantly, lots of
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364 SUPREME COURT REPORTS [2018] 8 S.C.R.

A ghosts and duplicate beneficiaries are able to take undue and

impermissible benefits. A former Prime Minister of this country [
Late Shri Rajiv Gandhi] has gone on record to say that out of one
rupee spent by the Government for welfare of the downtrodden,
only 15 paisa thereof actually reaches those persons for whom it
is meant. It cannot be doubted that with UID/Aadhaar much of
B
the malaise in this field can be taken care of.
263. It may be highlighted at this stage that the petitioners are
making their claim on the basis of dignity as a facet of right to privacy.
On the other hand, Section 7 of the Aadhaar Act is aimed at offering
subsidies, benefits or services to the marginalised section of the society
C for whom such welfare schemes have been formulated from time to
time. That also becomes an aspect of social justice, which is the obligation
of the State stipulated in Para IV of the Constitution. The rationale
behind Section 7 lies in ensuring targeted delivery of services, benefits
and subsidies which are funded from the Consolidated Fund of India. In
D discharge of its solemn Constitutional obligation to enliven the
Fundamental Rights of life and personal liberty (Article 21) to ensure
Justice, Social, Political and Economic and to eliminate inequality (Article
14) with a view to ameliorate the lot of the poor and the Dalits, the
Central Government has launched several welfare schemes. Some such
schemes are PDS, scholarships, mid day meals, LPG subsidies, etc.
E These schemes involve 3% percentage of the GDP and involve a huge
amount of public money. Right to receive these benefits, from the point
of view of those who deserve the same, has now attained the status of
fundamental right based on the same concept of human dignity, which
the petitioners seek to bank upon. The Constitution does not exist for a
F few or minority of the people of India, but “We the people”. The goals
set out in the Preamble of the Constitution do not contemplate statism
and do not seek to preserve justice, liberty, equality an fraternity for
those who have the means and opportunity to ensure the exercise of
inalienable rights for themselves. These goals are predominantly or at
least equally geared to “secure to all its citizens”, especially, to the
G downtrodden, poor and exploited, justice, liberty, equality and “to promote”
fraternity assuring dignity. Interestingly, the State has come forward in
recognising the rights of deprived section of the society to receive such
benefits on the premise that it is their fundamental right to claim such
benefits. It is acknowledged by the respondents that there is a paradigm
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 365
[A. K. SIKRI, J.]

shift in addressing the problem of security and eradicating extreme poverty A

and hunger. The shift is from the welfare approach to a right based
approach. As a consequence, right of everyone to adequate food no
more remains based on Directive Principles of State Policy (Art 47),
though the said principles remain a source of inspiration. This entitlement
has turned into a Constitutional fundamental right. This Constitutional
B
obligation is reinforced by obligations under International Convention.
The Universal Declaration of Human Rights (Preamble, Article 22 &
23) and International Covenant on Economic, Social and Cultural Rights
to which India is a signatory, also casts responsibilities on all State parties
to recognize the right of everyone to adequate food. Eradicating extreme
poverty and hunger is one of the goals under the Millennium Development C
Goals of the United Nations. The Parliament enacted the National
Security Food Act, 2013 to address the issue of food security at the
household level. The scheme of the Act designs a targeted public
distribution system for providing food grains to those below BPL. The
object is to ensure to the people adequate food at affordable prices so
D
that people may live a life with dignity. The reforms contemplated under
Section 12 of the Act include, application of information and
communication technology tools with end to end computerization to ensure
transparency and to prevent diversion, and leveraging Aadhaar for unique
biometric identification of entitled beneficiaries. The Act imposes
obligations on the Central Government, State Government and local E
authorities vide Chapter VIII, IX and X. Section 32 contemplates other
welfare schemes. It provides for nutritional standards in Schedule II
and the undertaking of further steps to progressively realize the objectives
specified in Schedule III.
264. At this juncture, we would also like to mention that historic F
judgment of this Court in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr. 89 emphasised on the
attainment of socio-economic rights and its interplay with fundamental
rights. Following passages from the opinion rendered by Khanna, J.
need a specific mention:
G
“1477. I may also refer to another passage on p. 99 of Grammar
of Politics by Harold Laski:
“The state, therefore, which seeks to survive must continually
transform itself to the demands of men who have an equal
89
(1973) 4 SCC 225 H
366 SUPREME COURT REPORTS [2018] 8 S.C.R.

A claim upon that common welfare which is its ideal purpose to

promote.
We are concerned here, not with the defence of anarchy, but
with the conditions of its avoidance. Men must learn to
subordinate their self-interest to the common welfare. The
B privileges of some must give way before the rights of all. Indeed,
it may be urged that the interest of the few is in fact the
attainment of those rights, since in no other environment is
stability to be assured.”
1478. A modern State has to usher in and deal with large schemes
C having social and economic content. It has to undertake the
challenging task of what has been called social engineering, the
essential aim of which is the eradication of the poverty, uplift of
the downtrodden, the raising of the standards of the vast mass of
people and the narrowing of the gulf between the rich and the
poor. As occasions arise quite often when the individual rights
D clash with the larger interests of the society, the State acquires
the power to subordinate the individual rights to the larger interests
of society as a step towards social justice. As observed by Roscoe
Pound on p. 434 of Volume I of Jurisprudence under the heading
“Limitations on the Use of Property”:
E “Today the law is imposing social limitations — limitations
regarded as involved in social life. It is endeavouring to delimit
the individual interest better with respect to social interests
and to confine the legal right or liberty or privilege to the bounds
of the interest so delimited.”
F To quote the words of Friedmann in Legal Theory:
“But modern democracy looks upon the right to property as
one conditioned by social responsibility by the needs of society,
by the ‘balancing of interests’ which looms so large in modern
jurisprudence, and not as pre-ordained and untouchable private
G right.” (Fifth Edition, p. 406).”
265. It would also be worthwhile to mark, in continuity with the
aforesaid thought, what Dwivedi, J. emphasised.
“...The Nation stands to-day at the cross-roads of history and
exchanging the time-honoured place of the phrase, may I say that
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 367
[A. K. SIKRI, J.]

the Directive Principles of State Policy should not be permitted to A

become “a mere rope of sand”. If the State fails to create
conditions in which the fundamental freedoms could be enjoyed
by all, the freedom of the few will be at the mercy of the many
and then all freedoms will vanish. In order, therefore, to preserve
their freedom, the privileged few must part with a portion of it.”
B
266. By no stretch of imagination, therefore, it can be said that
there is no defined State aim in legislating Aadhaar Act. We may place
on record that even the petitioners did not seriously question the purpose
bona fides of the legislature in enacting this law. In a welfare State,
where measures are taken to ameliorate the sufferings of the
downtrodden, the aim of the Act is to ensure that these benefits actually C
reach the populace for whom they are meant. This is naturally a
legitimate State aim.
(iii) Whether Aadhaar Act meets the test of proportionality?
267. The concept and contours of doctrine of proportionality have D
already been discussed in detail. We have also indicated the approach
that we need to adopt while examining the issue of proportionality. This
discussion bring out that following four sub-components of proportionality
need to be satisfied:
(a) A measure restricting a right must have a legitimate goal E
(legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
(c) There must not be any less restrictive but equally effective
alternative (necessity stage). F
(d) The measure must not have a disproportionate impact on the
right holder (balancing stage).
268. We now proceed to examine as to whether these components
meet the required parameters in the instant case.
G
(a) Legitimate Goal Stage: At this stage, the exercise which needs
to be undertaken is to see that the State has legitimate goal in restricting
the right. It is also to be seen that such a goal is of sufficient importance
justifying overriding a constitutional right of freedom. Further, it impairs
freedom as little as possible.
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368 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 269. In our preceding discussion, we have already pointed out

above that Aadhaar Act serves the legitimate state aim. That, in fact,
provides answer to this component as well. Some additions to the said
discussion is as follows:
It is a matter of common knowledge that various welfare
B schemes for marginalised section of the society have been floated by
the successive governments from time to time in last few decades. These
include giving ration at reasonable cost through ration shops (keeping in
view Right to Food), according certain benefits to those who are below
poverty line with the issuance of BPL Cards, LPG connections and LPG
cylinders at minimal costs, old age and other kinds of pensions to deserving
C persons, scholarships, employment to unemployed under Mahatma Gandhi
National Rural Employment Guarantee Act, 2005 (MGNREGA) Scheme.
There is an emergence of socio-economic rights, not only in India but in
many other countries world-wide. There is, thus, recognisation of civil
and political rights on the one hand and emergence of socio-economic
D rights on the other hand. The boundaries between civil and political
rights review as well as socio-economic rights review are rapidly
crumbling. This rights jurisprudence created in India is a telling example.
270. This Court has developed a reputation as both a protector of
Human Rights and an engine of economic and social reforms. In People’s
E Union for Civil Liberties (PUCL) v. Union of India90, the Court’s
treatment of Right to Food as a fundamental right has been seen as
victory for India’s impoverished population. The Court had passed orders
enforcing the Government to take steps to ensure the effective
implementation of the Food Distribution Schemes created by the Famine
Code. Series of interim orders were passed aimed at bringing immediate
F relief to the drought affected individuals. The benefits of the schemes
were converted into legal entitlements by orders dated November 28,
2001 passed in the said case. Amongst other things, the Court ordered
government to complete the identification of people who fell into the
groups targeted for food distribution, issue cards to allow these people to
G collect the grain and distribute the grain to the relevant centres. The
order also provided for governmental inspections to ensure fair quality
grain. In this and subsequent orders, the court set the requirements on
reporting, accountability, monitoring, transparency and dissemination of
court orders aimed at ensuring that its orders are followed.
90
(2001) 5 Scale 303
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 369
[A. K. SIKRI, J.]

271. The purpose behind these orders was to ensure that the A
deserving beneficiaries of the scheme are correctly identified and are
able to receive the benefits under the said scheme, which is their
entitlement. The orders also aimed at ensuring ‘good governance’ by
bringing accountability and transparency in the distribution system with
the pious aim in mind, namely, benefits actually reached those who are
B
rural, poor and starving.
272. Again, in People’s Union for Civil Liberties (PUCL) case,
orders dated January 20, 2010 were passed by the Division Bench of
this Court directing the Government of Delhi to respond to the extreme
weather conditions ‘by setting up more shelters and protecting homeless
people from the cold’. The assurance was extracted from the then C
Additional Solicitor General on behalf of the Government that affected
people would be provided with shelter as a matter of priority and that
arrangement should be made for this within a day.
273. In the context of Right to Education, this Court in State of
Bihar & Ors. v. Project Uchcha Vidya, Sikshak Sangh & Ors. 91 D
passed orders on January 3, 2006 thereby directing that a committee be
appointed to investigate departures from the State of Bihar’s policy
concerning the establishment of ‘Project Schools’ aimed at improving its
poor education record. The Court appointed a committee to investigate
the matter. The Court’s order included details as to the composition and E
functions of the committee, guidelines as to what would constitute
irregularities in the implementation of the policy and an expectation that
the State of Bihar would take remedial action if the committee found
any irregularities. The Court’s approach to affirmative action in education
is also instructive.
F
274. In Ashoka Thakur v. Union of India92, the Court upheld
the Ninety-Third Amendment to the Constitution, which allows for certain
educational institutions to put in place special admissions rules in order
to advance India’s ‘socially or educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes’.93 The Court held
that people who are wealthier and better educated (the ‘creamy layer’) G
should be excluded from the 27 per cent quota for ‘Other Backward
91
Civil Appeal No. 6626-6675 of 2001
92
Writ Petition (Civil) No. 265 of 2006, judgment delivered on April 10, 2008.
93
The challenge made in the case related to ‘Other Backward Classes’ rather than the
Scheduled Castes or Tribes. H
370 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Classes’ (OBC). This step was needed to ensure that benefits reached
those people living in desperate poverty. In addition, the inclusion of
particular groups in the OBC category had to be reviewed every five
years.
275. In Paschim Banga Ket Mazdoor Samity v. State of West
B Bengal94, the Court found that Article 21 encompasses a right to
adequate medical facilities or health care. It also interpreted other
fundamental rights in light of directive principles. Likewise, in Mohini
Jain v. State of Kerala & Ors.95, the Court held that the right to equality
before the law in Article 14 includes a right to education. In the subsequent
case, Unnikrishnan v. State of Andhra Pradesh96, the Court clarified
C its findings in Mohini Jain, stating that Article 14 gave rise to a right to
primary education. Following the cases on education, in 1997 the Indian
government proposed a constitutional Amendment recognising education
for children under 14 as a fundamental right. This Amendment was
passed in 2002 as Article 21A. One of the Court’s earliest cases dealing
D with the role of the directive principles in constitutional interpretation is
arguably also its most celebrated judgment. Some commentators see
the decision in Olga Tellis & Ors. v. Bombay Municipal Corporation
& Ors.97 as a recognition of enforceable right to shelter.
276. The purpose of citing aforesaid judgments is to highlight that
E this Court expanded the scope of Articles 14 and 21 of the Constitution
by recognising various socio-economic rights of the poor and marginalised
section of the society and, in the process, transforming the constitutional
jurisprudence by putting a positive obligation on the State to fulfill its
duty as per the Charter of Directive Principles of the State Policy,
contained in Part IV of the Constitution. It is to be kept in mind that
F while acknowledging that economic considerations would play a role in
determining the full content of the right to life, the Court also held that
right included the protection of human dignity and all that is attached to
it, ‘namely, the bare necessities of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing and expressing oneself in
G diverse forms’ (See Francis Coralie Mullin v. The Administrator,
Union Territory of Delhi & Ors.98). It is, thus, of some significance to
94
(1996) 4 SCC 37
95
(1992) 3 SCC 666
96
(1993) 1 SCC 645
97
1985 SCR Supl. (2) 51
98
(1981) 2 SCR 516
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 371
[A. K. SIKRI, J.]

remark that it is this Court which has been repeatedly insisting that benefits A
to reach the most deserving and should not get frittered mid-way. We
are of the opinion that purpose of Aadhaar Act, as captured in the
Statement of Objects and Reasons and sought to be implemented by
Section 7 of the Aadhaar Act, is to achieve the stated objectives. This
Court is convinced by its conscience that the Act is aimed at a proper
B
purpose, which is of sufficient importance.
(b) Suitability or rationale connection stage:
277. We are also of the opinion that the measures which are
enumerated and been taken as per the provisions of Section 7 read with
Section 5 of the Aadhaar Act are rationally connected with the fulfillment C
of the objectives contained in the Aadhaar Act. It may be mentioned
that the scheme for enrolling under the Aadhaar Act and obtaining the
Aadhaar number is optional and voluntary. It is given the nomenclature
of unique identity. A person with Aadhaar number gets an identity. No
doubt, there are many other modes by which a person can be identified.
However, certain categories of persons, particularly those living in abject D
poverty and those who are illiterate will not be in a position to get other
modes of identity like Pan Card, Passport etc. That apart giving unique
identity of each resident of the country is a special feature of this scheme,
more so, when it comes with the feature stated above, namely, no person
can have more than one Aadhaar number; Aadhaar number given to a E
particular person cannot be reassigned again to any individual even if
that is cancelled and there is hardly any possibility to have fake identity.
278. As pointed out above, enrolling for Aadhaar is not the serious
concern of the petitioners. It is only the process of authentication and
other related issues which bothers the petitioners which shall be F
considered at the appropriate stage. At this point of time, we are
discussing the issue as to whether the limitation on the rights of the
individuals is rationally connected to the fulfillment of the purpose
contained in the Aadhaar Act. Here, Section 5 talks of special measures
for issuance of Aadhaar number to certain categories of persons. It
gives identity to those persons who otherwise may not have any such G
identity. In that manner, it recognises them as residents of this nation
and in that form gives them their ‘dignity’.
279. Section 7, which provides for necessity of authentication for
receipt of certain subsidies, benefits and services has a definite purpose
H
372 SUPREME COURT REPORTS [2018] 8 S.C.R.

A and this authentication is to achieve the objectives for which Aadhaar

Act is enacted, namely, to ensure that such subsidies, benefits and services
reach only the intended beneficiaries. We have seen rampant corruption
at various levels in implementation of benevolent and welfare schemes
meant for different classes of persons. It has resulted in depriving the
actual beneficiaries to receive those subsidies, benefits and services which
B
get frittered away though on papers, it is shown that they are received
by the persons for whom they are meant. There have been cases of
duplicate and bogus ration cards, BPL cards, LPG connections etc. Some
persons with multiple identities getting those benefits manifold. Aadhaar
scheme has been successful, to a great extent, in curbing the aforesaid
C malpractices. By providing that the benefits for various welfare schemes
shall be given to those who possess Aadhaar number and after undergoing
the authentication as provided in Section 8 of the Aadhaar Act, the purpose
is to ensure that only rightful persons receive these benefits. Non-action
is not costly. It’s the affirmative action which costs the Government.
And that money comes from exchequer. So, it becomes the duty of the
D
Government to ensure that it goes to deserving persons. Therefore,
second component also stands fulfilled.
(c) Necessity Stage:
280. Insofar as third component is concerned, most of it stands
E answered while in the discussion that has ensued in respect of component
No. 1 and 2. The manner in which malpractices have been committed
in the past leaves us to hold that apart from the system of unique identity
in Aadhaar and authentication of the real beneficiaries, there is no
alternative measure with lesser degree of limitation which can achieve
the same purpose. In fact, on repeated query by this Court, even the
F petitioners could not suggest any such method.
(d) Balancing Stage:
281. With this, we now advert to the most important component
of proportionality i.e. balancing between importance of achieving the
G proper purpose and the social importance of preventing the limitation on
the constitutional right.
282. Argument of the petitioners is that Aadhaar project creates
the architect of surveillance state and society, which is antithetical to the
principles of democracy. It is premised on the basis that the Aadhaar
project enables the State to profile citizens, track their movements, assess
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 373
[A. K. SIKRI, J.]

their habits and silently influence their behaviour throughout their lives. A
It may stifle dissent and influence political decision making. It is also
argued that aggregation, storage and use of such stored information is
violative of fundamental right to privacy, dignity and individual autonomy.
Informational privacy is expected as part of right to privacy. The Act
allows data aggregation as well. Such an Act is unconstitutional as
B
there is violation of a fundamental rights but there is absence of procedural
safeguards to protect data in the Act. It is also argued that extent of
information collected with the use of Aadhaar, specially by the
methodology of authentication, is not proportionate to the ‘compelling
interest of the State’ and there are various other methods available for
identification. It is, thus, disproportionate and unreasonable state C
compulsion.
283. The respondents, on the other hand, have argued that there
cannot be any reasonable expectation of privacy inasmuch as the Aadhaar
Act operates in the public and relationally sphere and not in the core,
private or personal sphere of the residents. Moreover, it involves minimal D
identity information for effective authentication which stands the test of
reasonableness. The Act is, thus, least intrusive and strict scrutiny test
does not apply in the proportionality test. It is also the case of the
respondents that the Aadhaar Act does not allow aggregation at all and,
therefore, all the apprehension are ill-founded and have no basis. It is
also submitted that the Aadhaar Act is, in fact, the facilitator in E
empowering various facets of right to life under Article 21 and thereby
ensures that unprivileged class is also able to live with human dignity.
284. Before undertaking this exercise of balancing, we would like
to point out that we are not convinced with the argument of the
respondents that there cannot be any reasonable expectation of privacy. F
No doubt, the information which is gathered by the UIDAI (whether
biometric or demographic) is parted with by the individuals to other
agencies/body corporates etc. in many other kinds of transactions as
well, as pointed out by the respondents. However, the matter is to be
looked into from the angle that this information is collected and stored by G
the State or instrumentality of the State. Therefore, it becomes important
to find out as to whether it meets the test of proportionality, and satisfies
the condition that the measure must not have disproportionate impact on
the right-holder (balancing stage). However, at the same time, the fact
that such information about individuals is in public domain may become
a relevant factor in undertaking the exercise of balancing. H
374 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 285. We have already traced the objectives with which the

Aadhaar Act has been enacted. No doubt, there is a right to privacy,
which is now entrenched in fundamental rights. On the other hand, we
are also concerned with the rights of those persons whose dignity is
sought to be ensured by giving them the facilities which are necessary to
live as dignified life. Therefore, balancing has to be done at two levels:
B
(i) Whether, ‘legitimate state interest’ ensures ‘reasonable
tailoring’? There is a minimal intrusion into the privacy and the
law is narrowly framed to achieve the objective. Here the Act is
to be tested on the ground that whether it is found on a balancing
test that the social or public interest and the reasonableness of the
C restrictions outweigh the particular aspect of privacy, as claimed
by the petitioners. This is the test we have applied in the instant
case.
(ii) There needs to be balancing of two competing fundamental
rights, right to privacy on the one hand and right to food, shelter
D and employment on the other hand. Axiomatically both the rights
are founded on human dignity. At the same time, in the given
context, two facets are in conflict with each other. The question
here would be, when a person seeks to get the benefits of welfare
schemes to which she is entitled to as a part of right to live life
E with dignity, whether her sacrifice to the right to privacy, is so
invasive that it creates imbalance?
286. In a way, both the aforesaid questions have some overlapping
inasmuch as even while finding answer to the second question, it will
have to be determined as to whether there is a least intrusion into the
F privacy of a person while ensuring that the individual gets the benefits
under the welfare schemes.
287. The respondents seemed to be right when they argue that all
matters pertaining to an individual do not qualify as being an inherent
part of right to privacy. Only those which concern matters over which
G there can be a reasonable expectation of privacy would be protected by
Article 21. In this behalf, we may recapitulate the discussion on some
significant aspects in Puttaswamy:
Privacy postulates the reservation of a private space, described
as the right to be let alone. The integrity of the body and the sanctity of
the mind can exist on the foundation of the individual’s ‘right to preserve
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 375
[A. K. SIKRI, J.]

a private space in which the human personality can develop’ and this A
involves the ability to make choices. In this sense privacy is a postulate
of human dignity itself. The inviolable nature of the human personality is
manifested in the ability to make decisions on matters intimate to human
life. The autonomy of the individual is associated ‘over matters which
can be kept private. These are concerns over which there is a legitimate
B
expectation of privacy’. Thoughts and behavioral patterns which are
intimate to an individual are entitled to a zone of privacy where one is
free of social expectations. In that zone of privacy an individual is not
judged by others. The judgment refers to the expert group report and
identifies nine privacy principles pertaining to notice, choice and consent,
collection limitation, purpose limitation, access and correction, non C
disclosure of information, security of data, openness or proportionality
as to the scale, scope and sensitivity to the data collected, and
accountability. At the same time, privacy is a subset of liberty. All
liberties may not be exercised in privacy. It lies across the spectrum of
protected freedoms. Further, the notion of reasonable expectation of
D
privacy has both subjective and objective elements. At a subjective
level it means ‘an individual desires to be left alone’. On an objective
plain privacy is defined by those Constitutional values which shape the
content of the protected zone where the individual ‘ought to be left alone’.
Further, the notion of reasonable expectation of privacy ensures that
while on the one hand, the individual has a protected zone of privacy, yet E
on the other ‘the exercise of individual choices is subject the right of
others to lead orderly lives’. The extent of the zone of privacy would,
therefore, depend upon both the subjective expectation and the objective
principle which defines a reasonable expectation.
It is pertinent to point out that while dealing with informational F
privacy, the judgment notes that privacy concerns are seriously an issue
in the age of information. It also notes the data mining processes together
with knowledge discovery, and the age of big data. The court finds that
data regulation and individual privacy raises complex issues requiring
delicate balances to be drawn between the legitimate concerns of the
State and individual interest in the protection of privacy, and in this sphere, G
data protection assumes significance. Data such as medical information
would be a category to which a reasonable expectation of privacy
attaches. There may be other data which falls outside the reasonable
expectation paradigm. Data protection regimes seek to protect the
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376 SUPREME COURT REPORTS [2018] 8 S.C.R.

A autonomy of the individual. This is a complex exercise involving careful

balancing. In this balancing process, following parameters are to be
kept in mind:
(i) The judgment also holds that the legitimate expectation of
privacy may vary from the intimate zone to the private zone and
B from the private to the public arenas. However, ‘the privacy is
not lost or surrendered merely because the individual is in a public
space’.
(ii) One of the chief concerns is that ‘while the web is a source of
lawful activity – both personal and commercial, concerns of
C National security intervene since the seamless structure of the
web can be exploited by terrorist to wreak havoc and destruction
on civilized societies.’ Noting an article of Richard A. Posner,
which says ‘privacy is the terrorist’s best friend..’ It is observed
that this formulation indicates that State has legitimate interest
when it monitors the web to secure the Nation.
D
(iii) Apart from National security, State may have justifiable
reasons for the collection and storage of data as where it embarks
upon programs to provide benefits to impoverished and marginalized
sections of society and for ensuring that scarce public resources
are not dissipated and diverted to non-eligible recipients. Digital
E platforms are a vital tool of ensuring good governance in a social
welfare State and technology is a powerful enabler.
288. In the first instance, therefore, it is to be seen as to whether
the petitioners claim on the information supplied while authentication to
be protected is based on reasonable expectation.
F
289. ‘Reasonable Expectation’ involves two aspects. First, the
individual or individuals claiming a right to privacy must establish that
their claim involves a concern about some harm likely to be inflicted
upon them on account of the alleged act. This concern ‘should be real
and not imaginary or speculative’. Secondly, ‘the concern should not be
G flimsy or trivial’. It should be a reasonable concern. It has to be borne
in mind that the concept of ‘reasonable expectation’ has its genesis in
the US case laws. UK judgments adopted the test of reasonable
expectation from the US jurisprudence. The ECHR and ECJ judgments
reveal a little divergence with regard to right of privacy. The ECHR in
general adopts the approach that ‘a person’s reasonable expectation as
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 377
[A. K. SIKRI, J.]

to privacy may be significant, although, not necessarily conclusive factor’. A

This perhaps explains the apparent conflict as regards finger prints.
290. In the leading case Katz v. US99 Reasonable Expectation
was stated to embrace two distinct questions. The first was whether
the individual, by his conduct has exhibited an actual (subjective
expectation of privacy), and the second, whether the subjective B
expectation is one that the society is prepared to recognize as reasonable.
This was also followed in Smith v. Marlyand100.
291. In the judgment of Court of Appeal in R. Wood v.
Commissioner101, the appellant complained against taking and retention
of his photograph in Central London in the context of a meeting by the C
police force to enable identification at a later time in the event of eruption
of disorder and commission of offence. The concept of reasonable
expectation was examined after surveying a series of judgments which
sought to consider violation of Article 8 of the ECHR. The following
pertinent aspects emerge:
D
(i) Whether information related to private or public matter?
(ii) Whether the material obtained was envisaged for a limited
use or was likely to be made available to general public?
(iii) Private life was a broad term covering physical and
psychological integrity of a person. E
(iv) Storing of data relating to private life of an individual interferes
with Article 8. However, in determining whether information
retained involves any private life aspect would have to be
determined with due regard to the specific context.
F
(v) Article 8, however protean, should not be so construed widely
that its claims become unreal and unreasonable. Firstly, the threat
to individuals personal autonomy must attain a certain level of
seriousness. Secondly, the claimant must enjoy on the facts a
reasonable expectation of privacy. Thirdly, the breadth of Article
8(1) may in many instances be greatly curtailed by scope of G
justifications available to the State.
(vi) Reasonable expectation of privacy is a broad concept which
takes into account all the circumstances of the case. They include
99
389 U.S. 347
100
442 US 735
101
(2010) 1 WLR 123
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378 SUPREME COURT REPORTS [2018] 8 S.C.R.

A attributes of the claimants, the nature of the activity in which the

claimant was engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence (or presence) of
consent, the effect on the claimant and the purpose for which
information is taken.
B 292. Therefore, when a claim of privacy seeks inclusion in Article
21 of the Constitution of India, the Court needs to apply the reasonable
expectation of privacy test. It should, inter alia, see:
(i) What is the context in which a privacy claim is set up?
(ii) Does the claim relate to private or family life, or a confidential
C relationship?
(iii) Is the claim a serious one or is it trivial?
(iv) Is the disclosure likely to result in any serious or significant
injury and the nature and extent of disclosure?
D (v) Is disclosure relates to personal and sensitive information of
an identified person?
(vi) Does disclosure relate to information already disclosed
publicly? If so, its implication?
293. Under the Aadhaar Act Architecture, four types of information
E
is to be given at the time of enrolment:
(i) Mandatory demographic information comprising name, date of
birth, address and gender (Section 2(k) read with Regulation 4(1)
of the Aadhaar (Enrolment and Update) Regulations, 2016).

F (ii) Optional demographic information (Section 2(k) read with

Regulation 4(2) of the Aadhaar (Enrolment and Update)
Regulations, 2016).
(iii) Non core biometric information comprising photograph.
(iv) Core biometric information comprising finger print and iris
G scan.
294. Insofar as demographic information is concerned, it is required
by the provisions of many other enactments as well like Companies Act,
Special Marriage Act, Central Motor Vehicle Rules, Registration of
Electoral Rules, The Citizenship Rules, The Passport Act and even
H Supreme Court Rules.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 379
[A. K. SIKRI, J.]

295. As regards core biometric information which comprises finger A

prints, iris scan, for the purpose of enrolling in Aadhaar scheme, we
have already held earlier that it is minimal information required for
enrolment. This information becomes essential for authentication use in
a public sphere and in relational context.
296. It may also be mentioned that with the advent of science and B
technology, finger print and iris scan have been considered to be the
most accurate and non invasive mode of identifying an individual. It is
for this reason that these are taken also for driving licenses, passports,
visa as well as at the time of registration of documents by the State.
These are also used in mobile phones, laptops, lockers etc. for private
use. International Civil Aviation Organisation (ICAO) has recommended C
use of biometric passports. Many civilized countries with robust
democratic regime have also introduced biometric based identity cards.
Therefore, collection of information in the four different categories
mentioned above may not be unreasonable. However, as stated earlier
as well, the issue is not of taking the aforesaid information for the purpose D
of enrolling in Aadhaar and for authentication. It is the storage and
retention of this data, whenever authentication takes place, about which
the concerns are raised by the petitioners. The fears expressed by the
petitioners are that with the storage and retention of such data, profile of
the persons can be created which is susceptible to misuse.
E
297. This aspect has already been dealt with earlier and
apprehension of the petitioners are taken care of. To recapitulate, at the
time of enrolment, the data collected is minimal and there is no data
collection in respect of religion, caste, tribe, language of records of
entitlement income or medical history of the applicant at the time of
Aadhaar enrolment. Full care is taken that even the minimal data collected F
at the time of enrolment does not remain with the enrolment agency and
immediately gets transmitted to CIDR. Even at the time of authentication,
the only exercise which is undertaken by the Authority is to see that the
finger prints and/or iris scan of the concerned person sent for
authentication match with the one which is in the system of Authority. G
298. Let us advert to the second facet of balancing, namely,
balancing of two fundamental rights. As already pointed out above, the
Aadhaar Act truly seeks to secure to the poor and deprived persons an
opportunity to live their life and exercise their liberty. By ensuring targeted
delivery through digital identification, it not only provides them a nationally H
380 SUPREME COURT REPORTS [2018] 8 S.C.R.

A recognized identity but also attempts to ensure the delivery of benefits,

service and subsidies with the aid of public exchequer/Consolidated Fund
of India. National Security Food Act, 2013 passed by the Parliament
seeks to address the issue of food, security at the household level. The
scheme of that Act is aimed at providing food grains to those belonging
to BPL categories. Like the MGNREGA Act, 2005 takes care of
B
employment. The MGNREGA Act has been enacted for the
enhancement, livelihood, security of the households in rural areas of the
country. It guarantees at least 100 days of wage employment in every
financial year to at least one able member of every household in the
rural area on assets creating public work programme. Sections 3 and 4
C of the MGNREGA Act contain this guarantee. The minimum facilities
to be provided are set out by Section 5 read with Schedule II. Section
22 provides for funding pattern and Section 23 provides for transparency
and accountability. This Act is another instance of a rights based
approach and it enlivens the Fundamental Right to life and personal liberty
of Below Poverty Line people in rural areas.
D
299. We may mention here that Mr. Dwivedi had pointed out not
only India but several other countries including western nations which
have read socio-economic rights into human dignity and right to life.
Hungary and South Africa have gone to the extent of making express
provisions in their Constitutions.
E
The Federal Constitution Court of Germany in a decision dated
February 09, 2010 while deciding the question whether the amount of
standard benefit aid is compatible with the Basic Law held that:
“The Fundamental Right to the guarantee of a subsistence
F minimum is in line with human dignity emerges from Article 1.1 of
the Basic Law in conjunction with Article 20.1 of the Basic Law…
Article 1.1 of the Basic Law established this claim. The principle
of the social welfare State contained in Article 20.1 of the Basic
Law, in turn grants to the Legislature the mandate to ensure a
subsistence minimum for all that is in line with human dignity”.
G
It is further held that:
“if a person does not have the material means to guarantee an
existence that is in line with human dignity because he or she is
unable to obtain it either out of his or her gainful employment, or
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 381
[A. K. SIKRI, J.]

from own property or by benefits from third parties, the State is A

obliged within its mandate to protect human dignity and to ensure,
in the implementation of its social welfare state mandate, that the
material prerequisites for this are at the disposal of the person in
need of assistance.”
Similarly, in a latter judgment dated July 18, 2012 while deciding B
whether the amount of the cash benefit provided for in the Asylum Seekers
Benefits Act was constitutional it reiterated that:
“the direct constitutional benefit claim to the guarantee of a
dignified minimum existence does only cover those means that
are absolutely necessary to maintain a dignified life. It guarantees C
the entire minimum existence as a comprehensive fundamental
rights guarantee, that encompasses both humans’ physical
existence, that is food, clothing, household items, housing, heating,
hygiene, and health, and guarantees the possibility maintain
interpersonal relationships and a minimal degree of participation
in social, cultural and political life, since a human as a person D
necessarily exists in a social context..”
300. The Constitutional Court of South Africa in Government of
the Republic of South Africa & Ors. v. Grootboom102 held that:
“...these rights need to be considered in the context of the socio- E
economic rights enshrined in the Constitution. They entrench the
right to access to land, to adequate housing and to health care,
food, water and social security..”
301. In 1995, Hungary’s Constitutional Court ruled that the right
to social security as contained in Article 70/E of the Constitution obligated F
the State to secure a minimum livelihood through all of the welfare benefits
necessary for the realization of the right to human dignity.
302. Even in Italy, the Courts have emphasized on the right to
social security.
303. In Budina v. Russia103, the European Court of Human Rights G
has recognized, in principle, that inadequate benefits could fall under
Article 3 of the European Convention on Human Rights (ECHR) on the
right to be free from inhuman and degrading treatment.
102
(2000) ZACC 19
103
App. No. 45603/05 decided on 18.06.2009 H
382 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 304. In 1996, the Swiss Federal Court ruled that three Czechs
illegally residing in Switzerland are entitled to social benefit in order to
have a minimal level of subsistence for a life in dignity to prevent a
situation where people “are reduced to beggars, a condition unworthy of
being called human. It held:
B “...The federal constitution does not (though the 1995 draft new
constitution is now different) explicitly provide for a fundamental
right to a subsistence guarantee. One can however also derive
unwritten constitutional right from it. A guarantee of freedoms
not mentioned in the constitution by unwritten constitutional law
was assumed by the exercise of other freedoms (mentioned in
C the constitution), or otherwise evidently indispensable components
of the democratic constitutional order of the Federation...”
“...The guaranteeing of elementary human needs like food, clothing
and shelter is the condition for human existence and development
as such. It is at the same time an indispensable component of a
D constitutional, democratic polity.”
305. Nelson Mandela in his speech at Trafalgar Square in London
in 2005 said:
“...Massive poverty and obscene inequality are such terrible
E scourges of our times – times in which the world boasts
breathtaking advances in science, technology, industry and wealth
accumulation – that they have to rank alongside slavery and
apartheid as social evils...And overcoming poverty is not a gesture
of charity. It is an act of justice. It is the protection of a
fundamental human right, the right to dignity and a decent life.
F While poverty persists, there is no true freedom.”
306. Following passages by James Griffin in his book on “Human
Rights” are worth noting :
“10.1 THE HISTORICAL GROWTH OF RIGHTS:
G Contrary to widespread belief, welfare rights are not a twentieth-
century innovation, but are among the first human rights ever to
be claimed. When in the twelfth and thirteenth centuries our
modern conception of a right first appeared, one of the earliest
examples offered was the right of those in dire need to receive
aid from those in surplus. This right was used to articulate the
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 383
[A. K. SIKRI, J.]

attractive view of property prevalent in the medieval Church. God A

has given all things to us in common, but as goods will not be
cared for and usefully developed unless assigned to particular
individuals, we creatures have instituted systems of property. In
these systems, however, an owner is no more than a custodian.
We all thus have a right, if we should fall into great need, to receive
B
necessary goods or, failing that, to take them from those in surplus.
One finds, every occasionally, what seem to be human rights to
welfare asserted in the Enlightenment, for example, by John Locke,
Tom Paine, and William Cobbett. Following the Enlightenment,
right to welfare have often appeared in national constitutions; for
example, the French constitutions of the 1790s, the Prussian Civil C
Code (1794), the Constitutions of Sweden (1809), Norway (1814),
The Netherlands (1814), Denmark (1849), and, skipping to the
twentieth century, the Soviet Union (1936)-though it is not always
clear that the drafters of these various documents thought of these
fundamental civil rights as also human rights. By the end of the D
nineteenth century, political theorists were beginning to make a
case that welfare rights are basic in much the sense that Civil and
political rights are. But it was Franklin Roosevelt who did
most to bring welfare rights into public life. The Atlantic Charter
(1941), signed by Roosevelt and Churchill but in this respect
primarily Roosevelt’s initiative, declared that in addition to the E
classical civil and political freedoms here were also freedoms from
want and fear. In his State of the Union message of 1944,
Roosevelt averred :
We have come to a clear realization of the fact that true individual
freedom cannot exist without economic security and independence. F
‘Necessitous men are not free men’…
In our day these economic truths have become accepted as self
evident. We have accepted, so to speak, a second Bill of Rights…
Among these are : The right to a useful and remunerative job…. G
The right to earn enough to provide adequate food and clothing
and recreation…
The United Nations committee charged with drafting the Universal
Declaration of Human Rights (1948), chaired by Eleanor
Roosevelt, included most of the now standard welfare rights; rights
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384 SUPREME COURT REPORTS [2018] 8 S.C.R.

A to social security, to work, to rest and leisure, to medical care, to

education, and ‘to enjoy the arts and to share in scientific
advancements and its benefits’. The Universal Declaration is a
good example of how extensive-some would say lavish-proposed
welfare rights have become.
B ...If human rights are protections of a form of life that is
autonomous and free, they should protect life as well as that form
of it. But if they protect life, must they not also ensure the
wherewithal to keep body and soul together-that is, some minimum
material provision? And as mere subsistence-that is, keeping body
and soul together-is too meager to ensure normative agency, must
C not human rights guarantee also whatever leisure and education
and access to the thought of others that are also necessary to
being a normative agent?
That is the heart of the case. It appeals to our picture of human
agency and argues that both life and certain supporting goods are
D integral to it. Life and certain supporting goods are necessary
conditions of being autonomous and free. Many philosophers
employ this necessary – condition argument to establish a human
right to welfare-or, at least, to establish the right’s being as basic
as any other rights.
E I too want to invoke the necessary-conditions arguments; I should
only want to strengthen it. It is now common to say that liberty
rights and welfare rights are ‘indivisible’. But that, also, is too
weak. It asserts that one cannot enjoy the benefits of liberty
rights without enjoying the benefits of welfare rights, and vice
F versa. But something stronger still may be said. There are forms
of welfare that are empirically necessary conditions of a person’s
being autonomous and free, but there are also forms that are
logically necessary-part of what we mean in saying that a person
has these rights. The value in which human rights are grounded
is the value attaching to normative agency. The norm arising
G from this value, of course, prohibits persons from attacking
another’s autonomy and liberty. But it prohibits more. The value
concerned is being a normative agent, a self-creator, made in god’s
image…. The value resides not simply in one’s having the
undeveloped, unused capacities for autonomy and liberty but also
H in exercising them-not just in being able to be autonomous but
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 385
[A. K. SIKRI, J.]

also in actually being so. The norm associated with this more A
complex value would address other ways of failing to be an agent.
It would require protecting another person from losing agency, at
least if one can do this without great cost to oneself; it would
require helping to restore another’s agency if it has already been
lost, say through giving mobility to the crippled or guidance to the
B
blind, again with the same proviso. All of this is involved simply in
having a right to autonomy or to liberty. Welfare claims are already
part of the content of these rights. What, then, should we think
of the common division of basic rights into ‘classical’ liberty rights
and welfare rights? Into which of these two classes does the right
to autonomy or to liberty go? Into which of the two classes do the C
difficult, apparently borderline cases go, such as rights to life, to
property, to the pursuit of happiness, to security of person, and to
privacy? The sensible response would be to drop the distinction.
What is more, a right to welfare is a human right.
36. Amartya Sen in his book “Development as Freedom” says: D
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 E
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
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 F
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 G
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.”

H
386 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 307. In the aforesaid backdrop, this Court is called upon to find

out whether Aadhaar Act strikes a fair balance between the two rights.
In this context, we have to examine the importance of achieving the
proper purpose and the social importance of preventing the limitation on
the constitutional rights. Insofar as importance of achieving the proper
purpose is concerned, that has already been highlighted above. To
B
reiterate some of the important features, it is to be borne in mind that the
State is using Aadhaar as an enabler for providing deserving section of
the society their right to food, right to livelihood, right to receive pension
and other social assistance benefits like scholarships etc. thereby bringing
their right to life to fruition. This necessity of Aadhaar has arisen in
C order to ensure that such benefits are given to only genuine beneficiaries.
The Act aims at efficient, transparent and targeted delivery of subsidies,
benefits and services. In the process, it wants to achieve the objective
of checking the corrupt practices at various levels of distribution system
which deprive genuine persons from receiving these benefits. There
have been reports relating to leakages in PDS as well as in fuel subsidies
D
and also in working of MGNREGA scheme. Mr. Venugopal, learned
Attorney General has given the following details about these reports:
(I) Reports relating to leakages in PDS
Several studies initiated by the Government as well as the World
E Bank and Planning Commission revealed that food grains did not
reach the intended beneficiaries and that there was large scale
leakages due to the failure to establish identity:
(a) The Comptroller and Auditor General of India in its Audit Report
No. 3 of 2000 in its overview for the Audit Report observed that
F the Public Distribution Scheme suffered from serious targeting
problems. 1.93 Crore bogus ration cards were found to be in
circulation in 13 States and a significant portion of the subsidized
food-grains and other essential commodities did not reach the
beneficiaries due to their diversion in the open market.

G (b) A Report titled “Budget Briefs: Targeted Public Distribution

System (TPDS), GOI 2011-2012” prepared by Avani Kapur and
Anirvan Chowdhury and published by the Accountability Initiative
observed that there were large number of fake ration cards which
were causing inefficiencies in targeting. Between July 2006 and
July 2010, in Bihar, Madhya Pradesh, Uttar Pradesh and Orissa,
H total of 37 lakh ineligible/fake ration cards for households have
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 387
[A. K. SIKRI, J.]

been eliminated. Additionally, in Maharashtra and Madhya A

Pradesh, 29 lakh and 25 lakh ineligible ration cards were discovered
and cancelled.
(c) World Bank published a Discussion Paper No. 380 titled “India’s
Public Distribution System: A National and International
Perspective” dated November, 1997 co-authored by R. B
Radhakrishna and K. Subbarao, in which it was found that in the
year in 1986-87 for every one rupee (Re. 1) transferred under the
PDS, the expenditure incurred by the central government was
Rs. 4.27.
(d) The Planning Commission of India in its Performance C
Evaluation Report titled “Performance Evaluation Report of
Targeted Public Distribution System (TPDS)” dated March, 2005
found as follows:
(i) State-wise figure of excess Ration Cards in various states and
the existence of over 1.52 Crore excess Ration Cards issued. D
(ii) Existence of fictitious households and identification errors
leading to exclusion of genuine beneficiaries.
(iii) Leakage through ghost BPL Ration Cards found to be prevalent
in almost all the states under study.
E
(iv) The Leakage of food grains through ghost cards has been
tabulated and the percentage of such leakage on an All India basis
has been estimated at 16.67%.
(v) It is concluded that a large part of the subsidized food-grains
were not reaching the target group.
F
(II) Report relating to Fuel subsidies
13. With respect of Kerosene subsidies:
(a) A Report titled “Budgetary Subsidies in India – Subsidizing
Social and Economic Services” prepared by the National Institute
of Public Finance and Policy dated March, found that the key to G
lowering volume of subsidies was better targeting without which,
there was significant leakage to unintended beneficiaries, with
only 70% of the kerosene reaching the poorer section of society.
(b) The Economic Survey 2014-15 at Chapter 3 titled “Wiping
Every Tear from every Eye: The JAM Number Trinity Solution” H
388 SUPREME COURT REPORTS [2018] 8 S.C.R.

A dated February, 2015 noted that only 59 percent of subsidized

kerosene allocated via the PDS is actually consumed by
households, with the remainder lost to leakage and only 46 percent
of total consumption is by poor households.
14. With respect to the MGNREGA Scheme the following reports
B have found large scale leakages in the scheme:
(a) Report prepared by the V.V. Giri National Labour Institute
and sponsored by the Department of Rural Development, Ministry
of Rural Development, Government of India as “The study of
Schedule of Rates for National Rural Employment Guarantee
C Scheme” observes that there was great fraud in making fake job
cards and it was found that in many cases, it was found that
workers performed one day’s job, but their attendance was put
for 33 days. The workers got money for one day while wages for
32 days were misappropriated by the people associated with the
functioning of NREGS.
D
(b) The National Institute of Public Finance and Policy’s report
titled as “A Cost-benefit analysis of Aadhaar” dated 09.11.2012
estimated that a leakage of approximately 12 percent is being
caused to the government on account of ghost workers and
manipulated muster rolls and assumed that 5 percent of the leakages
E can be plugged through wage disbursement using Aadhaar-enabled
bank accounts and 7 percent through automation of muster rolls.
(III) It was also pointed out that the Thirteenth Finance
Commission Report for 2010-2015 dated December, 2009 at page
218 in “Chapter 12 – Grants in Aid” states that the creation of a
F biometric-based unique identity for all residents in the country has
the potential to address need of the government to ensure that
only eligible persons are provided subsidies and benefits and that
all eligible persons are covered.
The relevant findings of the above Report are as follows:
G
(i) Government of India’s expenditure on subsidies is expected to
be about Rs.1,11,000 Crore in 2009-10, or nearly 18 per cent of
the non-plan revenue expenditure.
(ii) The data base of eligible persons presently maintained has
both Type I (exclusion) and Type II (inclusion) errors. The first
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 389
[A. K. SIKRI, J.]

error arises from the difficulty faced by the poor in establishing A

their identity in order to be eligible for government subsidies and
social safety net programmes. The second error arises because
of the inability to cross-verify lists of eligible persons across district-
level and state-level data bases to eliminate duplicate and ghost
entries. We need to ensure that only eligible persons are provided
B
subsidies and benefits and that all eligible persons are covered.
(iii) Creation of a biometric-based unique identity for all residents
in the country has the potential to address both these dimensions
simultaneously. It will provide the basis for focusing subsidies to
target groups. Possession of such an identity will also enable the
poor and underprivileged to leverage other resources like bank C
accounts, cell phones, which can empower them and catalyse
their income growth. These benefits cannot be accessed by them
presently due to their inability to provide acceptable identification.
The initiative to provide unique IDs has the potential to significantly
improve the governance and delivery framework of public services D
while substantially reducing transaction costs, leakages and frauds.
308. As against the above larger public interest, the invasion into
the privacy rights of these beneficiaries is minimal. By no means it can
be said that it has disproportionate effect on the right holder.
309. Intensity of review depends upon the particular context of E
question in a given case. There is yet another significant angle in these
matters, which has to be emphasised at this stage viz. dignity in the form
of autonomy (informational privacy) and dignity in the form of assuring
better living standards, of the same individual. In the instant case, a
holistic view of the matter, having regard to the detailed discussion F
hereinabove, would amply demonstrate that enrolment in Aadhaar of
the unprivileged and marginalised section of the society, in order to avail
the fruits of welfare schemes of the Government, actually amounts to
empowering these persons. On the one hand, it gives such individuals
their unique identity and, on the other hand, it also enables such individuals
to avail the fruits of welfare schemes of the Government which are G
floated as socio-economic welfare measures to uplift such classes. In
that sense, the scheme ensures dignity to such individuals. This facet of
dignity cannot be lost sight of and needs to be acknowledged. We are,
by no means, accepting that when dignity in the form of economic
welfare is given, the State is entitled to rob that person of his liberty. H
390 SUPREME COURT REPORTS [2018] 8 S.C.R.

A That can never be allowed. We are concerned with the balancing of the
two facets of dignity. Here we find that the inroads into the privacy
rights where these individuals are made to part with their biometric
information, is minimal. It is coupled with the fact that there is no data
collection on the movements of such individuals, when they avail benefits
under Section 7 of the Act thereby ruling out the possibility of creating
B
their profiles. In fact, this technology becomes a vital tool of ensuring
good governance in a social welfare state. We, therefore, are of the
opinion that the Aadhaar Act meets the test of balancing as well.
310. We may profitably refer to the judgment of this Court in
People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India
C & Anr.104 which dealt with the issue of right to privacy vis-a-vis in public
interest and leaned in favour of public interest which can be seen from
the following discussion:
“121. It has been contended with much force that the right to
information made available to the voters/citizens by judicial
D interpretation has to be balanced with the right of privacy of the
spouse of the contesting candidate and any insistence on the
disclosure of assets and liabilities of the spouse invades his/her
right to privacy which is implied in Article 21. After giving anxious
consideration to this argument, I am unable to uphold the same. In
E this context, I would like to recall the apt words of Mathew, J., in
Gobind v. State of M.P. [1969 UJ (SC) 616] While analysing the
right to privacy as an ingredient of Article 21, it was observed:
(SCC p. 155, para 22)
“22. There can be no doubt that privacy-dignity claims deserve
F to be examined with care and to be denied only when an
important countervailing interest is shown to be superior.”
(emphasis supplied)
It was then said succinctly: (SCC pp. 155-56, para 22)
“If the court does find that a claimed right is entitled to protection
G
as a fundamental privacy right, a law infringing it must satisfy
the compelling State-interest test. Then the question would be
whether a State interest is of such paramount importance as
would justify an infringement of the right.”
104
(2003) 4 SCC 399
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 391
[A. K. SIKRI, J.]

It was further explained: (SCC p. 156, para 23) A

“[P]rivacy primarily concerns the individual. It therefore relates
to and overlaps with the concept of liberty. The most serious
advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy
interest in autonomy must also be placed in the context of other B
rights and values.”
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 C
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. It cannot be D
denied that the family relationship and social order in our
country is such that the husband and wife look to the properties
held by them as belonging to the family for all practical
purposes, though in the eye of law the properties may distinctly
belong to each of them. By and large, there exists a sort of E
unity of interest in the properties held by spouses. The property
being kept in the name of the spouse benami is not unknown
in our country. In this situation, it could be said that a
countervailing or paramount interest is involved in requiring a
candidate who chooses to subject himself/herself to public gaze
and scrutiny to furnish the details of assets and liabilities of the F
spouse as well. That is one way of looking at the problem.
More important, it is to be noted that Parliament itself accepted
in principle that not only the assets of the elected candidates
but also his or her spouse and dependent children should be
disclosed to the constitutional authority and the right of privacy G
should not come in the way of such disclosure;...”
311. In Vernonia School District 47J v. Acton et ux., Guardians
Ad Litem for Acton105, the Supreme Court of United States, while
repelling the Fourth Amendment challenge wherein the petitioner had
105
515 US 646 (1995) H
392 SUPREME COURT REPORTS [2018] 8 S.C.R.

A adopted a Drug Policy which authorised random urinalysis drug testing

of students participating in athletics programs, remarked as under:
“Taking into account all the factors we have considered above-
the decreased expectation of privacy, the relative unobtrusiveness
of the search, and the severity of the need met by the search-we
B conclude Vernonia’s Policy is reasonable and hence constitutional.”
312. This very exercise of balancing of two fundamental rights
was also carried out in Subramanian Swamy v. Union of India, Ministry
of Law & Ors.106 where the Court dealt with the matter in the following
manner:
C “122. In State of Madras v. V.G. Row [State of Madras v. V.G.
Row, AIR 1952 SC 196 : 1952 Cri LJ 966], the Court has ruled
that 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
D 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.

E xx xx xx
130. The principles as regards reasonable restriction as has been
stated by this Court from time to time are that the restriction should
not be excessive and in public interest. The legislation should not
invade the rights and should not smack of arbitrariness. The test
F of reasonableness cannot be determined by laying down any
abstract standard or general pattern. It would depend upon the
nature of the right which has been infringed or sought to be
infringed. The ultimate “impact”, that is, effect on the right has to
be determined. The “impact doctrine” or the principle of “inevitable
effect” or “inevitable consequence” stands in contradistinction to
G abuse or misuse of a legislation or a statutory provision depending
upon the circumstances of the case. The prevailing conditions of
the time and the principles of proportionality of restraint are to be
kept in mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The nature
106
(2016) 7 SCC 221
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 393
[A. K. SIKRI, J.]

of social control which includes public interest has a role. The A

conception of social interest has to be borne in mind while
considering reasonableness of the restriction imposed on a right.
The social interest principle would include the felt needs of the
society.
xx xx xx B
Balancing of fundamental rights
136. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights. It has
been argued by the learned counsel for the petitioners that the
right conferred under Article 19(1)(a) has to be kept at a different C
pedestal than the individual reputation which has been recognised
as an aspect of Article 21 of the Constitution. In fact the submission
is that right to freedom of speech and expression which includes
freedom of press should be given higher status and the individual’s
right to have his/her reputation should yield to the said right. In D
this regard a passage from Sakal Papers (P) Ltd. [Sakal Papers
(P) Ltd. v. Union of India, (1962) 3 SCR 842 : AIR 1962 SC
305] has been commended to us. It says: (AIR pp. 313-14, para
36)
“36. … Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations with E
foreign State, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It
cannot, like the freedom to carry on business, be curtailed in
the interest of the general public. If a law directly affecting it
is challenged, it is no answer that the restrictions enacted by it F
are justifiable under clauses (3) to (6). For, the scheme of Article
19 is to enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be subjected
and the objects for securing which this could be done. A citizen
is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to G
another. That is the plain meaning of this clause. It follows
from this that the State cannot make a law which directly
restricts one freedom even for securing the better enjoyment
of another freedom.”
(emphasis supplied) H
394 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 137. Having bestowed our anxious consideration on the said

passage, we are disposed to think that the above passage is of no
assistance to the petitioners, for the issue herein is sustenance
and balancing of the separate rights, one under Article 19(1)(a)
and the other, under Article 21. Hence, the concept of equipoise
and counterweighing fundamental rights of one with other person.
B
It is not a case of mere better enjoyment of another freedom. In
Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj v. State of Gujarat [Acharya Maharajshri Narendra
Prasadji Anandprasadji Maharaj v. State of Gujarat, (1975)
1 SCC 11], it has been observed that a particular fundamental
C right cannot exist in isolation in a watertight compartment. 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
D
claims of different interests…
xx xx xx
194. Needless to emphasise that when a law limits a constitutional
right which many laws do, such limitation is constitutional if it is
E proportional. The law imposing restriction is 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. Such limitations should not be
arbitrary or of an excessive nature beyond what is required in the
interest of the public. Reasonableness is judged with reference to
F the objective which the legislation seeks to achieve, and must not
be in excess of that objective (see P.P. Enterprises v. Union of
India [P.P. Enterprises v. Union of India, (1982) 2 SCC 33 :
1982 SCC (Cri) 341]). Further, the reasonableness is examined in
an objective manner from the standpoint of the interest of the
G general public and not from the point of view of the person upon
whom the restrictions are imposed or abstract considerations (see
Mohd. Hanif Quareshi v. State of Bihar [Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731]).”
313. Thus, even when two aspects of the fundamental rights of
H the same individual, which appear to be in conflict with each other, is
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 395
[A. K. SIKRI, J.]

done, we find that the Aadhaar Act has struck a fair balance between A
the right of privacy of the individual with right to life of the same individual
as a beneficiary.
In the face of the all pervading prescript for accomplished socio-
economic rights, that need to be given to the deprived and marginalised
section of the society, as the constitutional imperative embodied in these B
provisions of the Act, it is entitled to receive judicial imprimatur.
Re : Argument on Exclusion:
314. Some incidental aspects, however, remain to be discussed.
It was argued by the petitioners that the entire authentication process is
probabilistic in nature inasmuch as case of a genuine person for C
authentication can result in rejection as biometric technology does not
guarantee 100% accuracy. It may happen for various reasons, namely,
advance age, damage to fingerprints due to accident, etc. Even in case
of children the fingerprints may change when they grow up. The emphasis
was that there was a possibility of failure in authentication for various D
reasons and when it happens it would result in the exclusion rather than
inclusion. In such eventuality an individual would not only be denied the
benefits of welfare schemes, it may threaten his very identity and existence
as well and it would be violative of Articles 14 and 21 of the Constitution.
The Authority has claimed that biometric accuracy is 99.76%. It was,
however, submitted that where more than 110 crores of persons have E
enrolled themselves, even 0.232% failure would be a phenomenal figure,
which comes to 27.60 lakh people. Therefore, the rate of exclusion is
alarming and this would result in depriving needy persons to enjoy their
fundamental rights, which is the so-called laudable objective trumpeted
by the respondents. F
315. The aforesaid apprehensions are sought to be assuaged by
the respondents by submitting that Section 7 of the Act nowhere says
that if authentication fails, the concerned person would be deprived of
subsidies, benefits or services. It is only an enabling provision. It also
provides that in case of such a failure, such an individual would be permitted G
to establish her identity by any other means so that genuine persons are
not deprived of their benefits which are mentioned in Section 7 as the
entire Act is to facilitate delivery of those benefits to such persons.
Learned Attorney General also referred to the Circular dated October
24, 2017 in this behalf which is issued by the Authority. That, according
to us, takes care of the problem. H
396 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 316. We understand and appreciate that execution of the Aadhaar

scheme, which has otherwise a laudable objective, is a ‘work in progress’.
There have been substantial improvements in the system over a period
of time from the date of its launch. It was stated by the learned Attorney
General as well as Mr. Rakesh Dwivedi, at the Bar, that whenever
difficulties in implementation are brought to the notice of the respondents,
B
remedial measures are taken with promptness. Cases of denial of
services are specifically looked into which is very much needed in a
welfare State and there can be a genuine hope that with the fine tuning
of technology, i.e. the mode of advancement at rapid pace, such problems
and concerns shall also be completely taken care of.
C 317. In fairness to the petitioners, it is worth mentioning that they
have referred to the research carried out by some individuals and even
NGOs which have been relied upon to demonstrate that there are number
of instances leading to the exclusion i.e. the benefits are allegedly denied
on the ground of failure of authentication. The respondents have refuted
D such studies. These become disputed question of facts. It will be difficult
to invalidate provisions of Parliamentary legislations on the basis of such
material, more particularly, when their credence has not been tested.
318. That apart, there is another significant and more important
aspect which needs to be highlighted. The objective of the Act is to plug
E the leakages and ensure that fruits of welfare schemes reach the targeted
population, for whom such schemes are actually meant. This is the
larger purpose, and very important public purpose, which the Act is
supposed to subserve. We have already held that it fulfills legitimate
aim and there is a rational connection between the provisions of the Act
and the goals which it seeks to attain. The Act passes the muster of
F necessity stage as well when we do not find any less restrictive measure
which could be equally effective in achieving the aim. In a situation like
this where the Act is aimed at achieving the aforesaid public purpose,
striving to benefit millions of deserving people, can it be invalidated only
on the ground that there is a possibility of exclusion of some of the
G seekers of these welfare schemes? Answer has to be in the negative.
We may hasten to add that by no means, we are accepting that if such
an exclusion takes place, it is justified. We are only highlighting the fact
that the Government seems to be sincere in its efforts to ensure that no
such exclusion takes place and in those cases where an individual who
is rightfully entitled to benefits under the scheme is not denied such a
H benefit merely because of failure of authentication. In this scenario, the
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 397
[A. K. SIKRI, J.]

entire Aadhaar project cannot be shelved. If that is done, it would cause A

much more harm to the society.
319. We are also conscious of the situation where the formation
of fingerprints may undergo change for various reasons. It may happen
in the case of a child after she grows up; it may happen in the case of an
individual who gets old; it may also happen because of damage to the B
fingers as a result of accident or some disease etc. or because of
suffering of some kind of disability for whatever reason. Even iris test
can fail due to certain reasons including blindness of a person. We again
emphasise that no person rightfully entitled to the benefits shall be denied
the same on such grounds. It would be appropriate if a suitable provision
be made in the concerned regulations for establishing an identity by C
alternate means, in such situations. Furthermore, if there is a 0.232%
failure in authentication, it also cannot be said that all these failures were
only in those cases where authentication was for the purpose of utilising
for the benefit of the welfare schemes, i.e. with reference to Section 7
of the Act. It could have happened in other cases as well. Be as it may, D
there is yet another angle which has to be kept in mind and cannot be
ignored. We have already highlighted above as to how the Aadhaar
project is aimed at serving a much larger public interest. The Authority
has claimed that biometric accuracy is 99.76% and the petitioners have
also proceeded on that basis. In this scenario, if the Aadhaar project is
shelved, 99.76% beneficiaries are going to suffer. Would it not lead to E
their exclusion? It will amount to throwing the baby out of hot water
along with the water. In the name of 0.232% failure (which can in any
case be remedied) should be revert to the pre-Aadhaar stage with a
system of leakages, pilferages and corruption in the implementation of
welfare schemes meant for marginalised section of the society, the full F
fruits thereof were not reaching to such people? The Aadhaar programme
was conceived and conceptualised by Mr. Nandan Nilekani under the
leadership of then Prime Minister, a great economist himself. It went
through rigorous process of testing about its effectiveness before it is
launched. This has been stated in the beginning. The entire aim behind
launching this programme is the ‘inclusion’ of the deserving persons G
who need to get such benefits. When it is serving much larger purpose
by reaching hundreds of millions of deserving persons, it cannot be
crucified on the unproven plea of exclusion of some. We again repeat
that the Court is not trivialising the problem of exclusion if it is there.
However, what we are emphasising is that remedy is to plug the loopholes H
398 SUPREME COURT REPORTS [2018] 8 S.C.R.

A rather than axe a project, aimed for the welfare of large section of the
society. Obviously, in order to address the failures of authentication, the
remedy is to adopt alternate methods for identifying such persons, after
finding the causes of failure in their cases. We have chosen this path
which leads to better equilibrium and have given necessary directions
also in this behalf.
B
320. Another facet which needs examination at this stage is the
meaning that is to be assigned to the expression ‘benefits’ occurring in
Section 7 of the Aadhaar Act, along with ‘subsidies’ and ‘services’. It
was argued that the expression ‘benefits’ is very lose and wide and the
respondents may attempt to bring within its sweep any and every kind of
C governmental activity in the name of welfare of communities, which
would result in making the requirement of Aadhaar virtually mandatory.
It was pointed out that by issuing various circulars the Government has
already brought within the sweep of Section 7, almost 139 such subsidies,
services and benefits.
D 321. No doubt, the Government cannot take umbrage under the
aforesaid provision to enlarge the scope of subsidies, services and
benefits. ‘Benefits’ should be such which are in the nature of welfare
schemes for which resources are to be drawn from the Consolidated
Fund of India.
E Therefore actions by CBSE, NEET, JEE and UGC requirements
for scholarship shall not be covered under Section 7, unless it is
demonstrated that the expenditure is incurred from Consolidated Fund
of India. Further, the expression ‘benefit’ has to be read ejusdem generis
with the preceding word ‘subsidies’.
F 322. We also make it clear that a benefit which is earned by an
individual (e.g. pension by a government employee) cannot be covered
under Section 7 of the Act, as it is the right of the individual to receive
such benefit.
At the same time, we have gone through the list of notifications
G which are issued under Section 7 of the Aadhaar Act. We find that most
of these notifications pertain to various welfare schemes under which
benefits, subsidies or services are provided to the intending recipients.
Moreover, in order to avail the benefits, only one time verification is
required except for few services where annual verification is needed. It
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 399
[A. K. SIKRI, J.]

is only in respect of fertilizer subsidy where authentication is required A

every time the fertilizer is disbursed. However, it is clarified that fertilizer
is also given on the basis of other documents such as Kisan Credit Card,
etc. At the same time, we hope that the respondents shall not unduly
expand the scope of ‘subsidies, services and benefits’ thereby widening
the net of Aadhaar, where it is not permitted otherwise. Insofar as
B
notifications relating to children are concerned, we have already dealt
with the same separately. We, thus, conclude this aspect as under:
(a) ‘benefits’ and ‘services’ as mentioned in Section 7 should be
those which have the colour of some kind of subsidies etc., namely,
welfare schemes of the Government whereby Government is doling out
such benefits which are targeted at a particular deprived class. C

(b) The expenditure thereof has to be drawn from the Consolidated

Fund of India.
(c) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the
requirement of Aadhaar mandatory as they are outside the purview of D
Section 7 and are not backed by any law.
Children:
323. Though, we have upheld, in general, the validity of Section 7
of the Aadhaar Act, one specific aspect thereof is yet to be considered.
Section 7 mandates requirement of Aadhaar for the purposes of receiving E
certain subsidies, benefits and services. Thus, any individual who wants
to seek any of these subsidies, benefits and services is compulsorily
required to have an Aadhaar number. This will include children as well.
Some of the petitioners as well as some other applicants who have
intervened in these petitions have expressed their concern about the F
mandatory requirement of Aadhaar for children and subsequent linking
for realising their basic rights including education. They have referred to
various circulars and notifications issued through various functionaries,
schools, The Ministry of Human Resource Development (MHRD) which
have mandated production of Aadhaar card details for the children seeking
admission to schools and to link the Aadhaar of the students already G
enrolled. We have held that Aadhaar is a voluntary scheme and, therefore,
the Aadhaar number is to be alloted to an individual on his ‘consent’. No
doubt, for the purposes of utilising any of the benefits under Section 7 of
the Aadhaar Act, it becomes necessary to have Aadhaar number.
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400 SUPREME COURT REPORTS [2018] 8 S.C.R.

A However, the question is as to whether it can be extended to children? It

is more so when they are not under legal capacity to provide any ‘consent’
under the law.
324. Article 21A of the Constitution guarantees right to education
and makes it fundamental right of the children between 6 years and 14
B years of age. Such a right cannot be taken away by imposing requirement
of holding Aadhaar card, upon the children.
325. In view thereof, admission of a child in his school cannot be
covered under Section 7 of the Aadhaar Act as it is neither subsidy nor
service. No doubt, the expression ‘benefit’ occurring in Section 7 is
C very wide. At the same time, it has to be given restrictive meaning and
the admission of children in the schools, when they have fundamental
right to education, would not be covered by Section 7, in our considered
view. The respondents made an attempt to justify the linkage of Aadhaar
with child information and records by arguing that there have been several
instances of either impersonations at examinations or bogus admissions
D which have the potential to pilfer away various scholarship schemes
which the Government provides for weaker sections from time to time.
If this is the objective, then also requirement of Aadhaar cannot insisted
at the time of admission but only at the stage of application for Government
scholarships. Insofar as impersonation at examination is concerned,
E that can be easily checked and contained by other means with effective
checks and balances. When there are alternative means, insistence on
Aadhaar would not satisfy the test or proportionality. This would violate
the privacy right of the children importance whereto is given by the
Constitution Bench in K.S. Puttaswamy in the following words:

F “633. Children around the world create perpetual digital footprints

on social network websites on a 24/7 basis as they learn their
‘ABCs’: Apple, Bluetooth, and Chat followed by Download, E-
Mail, Facebook, Google, Hotmail, and Instagram. They should
not be subjected to the consequences of their childish mistakes
and naivety, their entire life. Privacy of children will require special
G protection not just in the context of the virtual world, but also the
real world.”
326. It is also important to note herein that the Juvenile Justice
Act, 2015 while addressing children in need of care and protection and
children in conflict with law enunciates that the records of the children
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 401
[A. K. SIKRI, J.]

are confidential and will not be parted with unless requested by the A
Children’s Court. In contrast, the submission of the Union justifying
linking of Aadhaar with student records on malpractice in examinations
and potential bogus admissions with no safeguards whatsoever.
327. It has to be kept in mind that when the children are incapable
of giving consent, foisting compulsion of having Aadhaar card upon them B
would be totally disproportionate and would fail to meet the proportionality
test. As the law exists today, a child can hold property, operate a bank
account, be eligible to be a nominee in an insurance policy or a bank
account or have any financial transaction only through a legal guardian
who has to be a major of sound mind. In cases where a child is in
conflict with the law, the child is given a special criminal trial under the C
Juvenile Justice (Care and Protection of Children) Act, 2015 and there
is a mandatory requirement for the records to be kept confidential and
destroyed so that the criminal record of the child is not maintained. This
is the position in law contained in Section 11 of the Indian Contract Act,
1872, Section 45ZA of the Banking Regulation Act, 1949, Section 39 of D
the Insurance Act, 1938, Section 90 of the Indian Penal Code (which
provides that consent of the child who is under 12 years of age shall not
be regarded as consent) etc. Thus, when a child is not competent to
contract; not in a position to consent; barred from transferring property;
prohibited from taking employment; and not allowed to open/operate
bank accounts and, as a consequence, not in a position to negotiate her E
rights, thirsting upon compulsory requirement of holding Aadhaar would
be an inviable inroad into their fundamental rights under Article 21. The
restriction imposed on such a right in the form of an Aadhaar cannot be
treated as constitutionally justified. We may also mention here that State
is supposed to keep in mind the best interest of the children which is F
regarded as primary consideration in our Constitution (See R.D.
Upadhyay v. State of Andhra Pradesh & Ors.107). The convention on
the Rights of Child108 reiterates that the best interests of the child will be
the basic concern of the parents or legal guardians of the child. The
Constitution affirms acting in the best interest of the children and confers
the responsibility on the State to not only safeguard the best interests of G
children but also act in furtherance of it. Therefore, we are of the
opinion that the State is constitutionally bound to facilitate and enable the
107
(2007) 15 SCC 49
108
India acceded to the UN Convention on the Rights of the Child in December 1992 to
reiterate its commitment to the cause of the children.
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402 SUPREME COURT REPORTS [2018] 8 S.C.R.

A parents and guardians of the children to assert their rights and act in
their best interest and this has to be done without having any mandatory
directives to it. The onus of overseeing and lawfully safeguarding the
rights and immunities, to which children are entitled to, rests on the State
and the authorities under it. Giving proper education to children and
ensuring that they become valuable citizens of this nation subserves public
B
interest. This is the mandate of Convention on the Rights of Child (CRC)
as well. We may reproduce Article 27 of the CRC:
“States Parties recognize the right of every child to a standard of
living adequate for the child’s physical, mental, spiritual, moral
and social development.
C
2. The parent(s) or others responsible for the child have the
primary responsibility to secure, within their abilities and financial
capacities, the conditions of living necessary for the child’s
development.
D 3. States Parties, in accordance with national conditions and within
their means, shall take appropriate measures to assist parents and
others responsible for the child to implement this right and shall in
case of need provide material assistance and support programmes,
particularly with regard to nutrition, clothing and housing.”

E 328. Article 8 of the CRC provides that:

“(2) For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render
appropriate assistance to parents and legal guardians in the
performance of their child-rearing responsibilities and shall ensure
F the development of institutions, facilities and services for the care
of children.
(3) States Parties shall take all appropriate measures to ensure
that children of working parents have the right to benefit from
child-care services and facilities for which they are eligible.”
G 329. Further, Article 16 of the Convention on the Rights of Child,
1989 bars children from being subject to arbitrary or unlawful interference
in their privacy, family, home, or correspondence. One of the principles
espousing the Juvenile Justice Act, 2015 is the principle of confidentiality.
Section 24 of the Act, dealing with children in conflict with law, further
emphasizes:
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 403
[A. K. SIKRI, J.]

“(2) The Board shall make an order directing the Police, or by A

the Children’s court to its own registry that the relevant records
of such conviction shall be destroyed after the expiry of the period
of appeal or, as the case may be, a reasonable period as may be
prescribed.”
330. Section 3 of the Juvenile Justice Act, 2015 expounds the B
principles underlying the process in dealing with children under the Statute.
The principle of right to privacy and confidentiality emphasizes, “Every
child shall have a right to protection of his privacy and confidentiality, by
all means and throughout the judicial process.”
331. We would like to reproduce the following observations of C
English quote in Murray v. Big Pictures (UK) Ltd.109 where greatest
significance is attached to the privacy right when it comes to children.
That was a case where photographer had taken a series of photographs
of a writer’s infant son, which were later published in a newspaper. The
issue was whether there was misuse of private information by taking
photographs. It was held that: D

“The question of whether there is a reasonable expectation of

privacy is a broad one, which takes account of all the circumstances
of the case. They include the attributes of the claimant, the nature
of the activity in which the claimant was engaged, the place at
which it was happening, the nature and purpose of the intrusion, E
the absence of consent and whether it was known or could be
inferred, the effect on the claimant and the circumstances in which
and the purposes for which the information came into the hands
of the publisher...It is at least arguable that David had a reasonable
expectation of privacy. The fact that he is a child is in our view of F
greater significance than the judge thought.”
We may also record at this stage that various circulars, orders
and notifications are issued by different Ministries and Departments under
Section 7 of the Aadhaar Act which pertain to children. Some of these
are: G
(1) National Child Labour Project (NCLP).
(2) Scholarship schemes which are given to school students, like
National Means-cum-Merit Scholarship Scheme; National
Scheme of Incentive to Girls for Secondary Education; Benefit
109
(2008) 3 WLR 1360 H
404 SUPREME COURT REPORTS [2018] 8 S.C.R.

A to 6 to 14 years children under Sarva Shiksha Abhiyan;

Inclusive Education of the Disabled at Secondary State; and
Mid-day Meal for Children.
(3) Assistance/Scholarship given by the Department of
Empowerment to the Persons with Disabilities, which include
B Scholarship Schemes for education of students with disabilities.
(4) Following Schemes floated by the Ministry of Women and
Child Development, some of which relate to children:
(a) Supplementary Nutrition Programme under ICDS Scheme.
(b) Payment of honorarium to AWWs & AWHs under ICDS
C Scheme.
(c) Supplementary Nutrition for children offered at Creche
Centres.
(d) Honorarium paid towards the Creche Workers and Creche
Helpers.
D (e) Maternity Benefit Programme (MBP).
(f) Scheme for Adolescent Girls.
(g) National Mission for Empowerment of Women.
(h) ICDS Training Programme.
(i) Ujjawala Scheme.
E
(j) Swadhar Scheme.
(k) Integrated Child Protection Scheme.
(l) STEP programme.
(m) Rashtriya Mahila Kosh.
F (n) Pradhan Mantri Matru Vanana Yojana.
(5) Painting and Essay competitions for school children under IEC
component of Human Resource Development and Capacity
Building.
332. After considering the matter in depth and having regard to
G the discussion aforesaid, we hold as under:
(a) For the enrolment of children under the Aadhaar Act, it would
be essential to have the consent of their parents/guardian.
(b) On attaining the age of majority, such children who are enrolled
under Aadhaar with the consent of their parents, shall be given
H the right to exit from Aadhaar, if they so choose.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 405
[A. K. SIKRI, J.]

(c) Insofar as the school admissions of children are concerned, A

requirement of Aadhaar would not be compulsory as it is neither
a service nor subsidy. Further, having regard to the fact that a
child between the age of 6 to 14 years has the fundamental right
to education under Article 21A of the Constitution, school admission
cannot be treated as ‘benefit’ as well.
B
(d) Benefits to children between 6 to 14 years under Sarva
Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar
enrolment.
(e) For availing the benefits of other welfare schemes which are
covered by Section 7 of the Aadhaar Act, though enrolment
number can be insisted, it would be subject to the consent of the C
parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of
these schemes if, for some reasons, she is not able to produce the
Aadhaar number and the benefit shall be given by verifying the
identity on the basis of any other documents. We may record that D
a statement to this effect was also made by Mr. K.K. Venugopal,
learned Attorney General for India, at the Bar.
Challenge to the other provisions of the Aadhaar Act:
333. The petitioners have challenged the constitutionality of certain
other provisions of Aadhaar Act as well. They have submitted their E
reasons on the basis of which they are seeking the declaration to the
effect these provisions are unconstitutional. We reproduce the provisions
of Aadhaar Act as well as reasons given by the petitioners in tabulated
form, as under:
S.No. Provisions of the Reason for being unconstitutional F
Aadhaar Act
1. Section 2(c) and 2(d) ‘Authentication Record’ includes the time of
- authentication and authentication and the identity of the requesting
authentication record, entity. The UIDAI and the Authentication
read with Section 32 Service Agency (ASA) is permitted to store this
authentication record for 2+5 years (as per
Regulations 20 and 26/27 of the Authentication G
Regulations).

By definition it provides for real-time

surveillance and profiling. The record stores
both the time and the identity of the requesting
entity.
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406 SUPREME COURT REPORTS [2018] 8 S.C.R.

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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 407
[A. K. SIKRI, J.]

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408 SUPREME COURT REPORTS [2018] 8 S.C.R.

H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 409
[A. K. SIKRI, J.]

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410 SUPREME COURT REPORTS [2018] 8 S.C.R.

H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 411
[A. K. SIKRI, J.]

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412 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 334. We have already dealt with the issue of validity of some of

the provisions. We would now advert to the remaining provisions, validity
whereof is questioned.
Keeping in view the preceding discussion, challenge to most of
these provisions would fail. Insofar as Section 2(l) read with Regulation
B 23 of the Aadhaar (Enrolment and Update) Regulations is concerned
which deals with ‘enrolling agency’, main challenge is on the ground
that the work of an enrolment could not have been given to a private
entity as private entity cannot be entrusted with the crucial task of
explaining the nature of Aadhaar enrolment and securing informed
consent. Further, the task of collection of sensitive personal biometric
C and demographic data and information for the purpose of storage cannot
be given to private hands. However, having regard to the nature of
process that has been explained by the Authority, which ensures that
immediately on enrolment, the concerned data collected by the private
entity is beyond its control; it gets encrypted; and stands transmitted to
D CIDR, we do not find any basis of the apprehension expressed by the
petitioners.
335. Insofar as Section 2(v) is concerned which defines resident,
there is nothing wrong with the definition. The grievance of the petitioners
is that the Aadhaar Act creates no credible machinery for availing a
E claim that a person has been residing in India for 182 days or more.
Apprehension is expressed that this expression may also facilitate the
entry of illegal immigrants. These aspects can be taken care of by the
respondents by providing appropriate mechanism. We direct the
respondents to do the needful in this behalf. However, that would not
render the definition unconstitutional.
F
336. Section 3, by the very language thereof, mentions that it is an
enabling provision which ‘entitles’ every resident to obtain Aadhaar
number. Therefore, it is voluntary in nature. This is so held by Division
Bench of this Court in Binoy Viswam in the following words:

G “93. Before proceeding to discuss this argument, one aspect of

the matter needs clarification. There was a debate as to whether
the Aadhaar Act is voluntary or even that Act makes enrolment
under Aadhaar mandatory.
94. First thing that is to be kept in mind is that the Aadhaar Act is
enacted to enable the Government to identify individuals for
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 413
[A. K. SIKRI, J.]

delivery of benefits, subsidies and services under various welfare A

schemes. This is so mentioned in Section 7 of the Aadhaar Act
which states that proof of Aadhaar number is necessary for receipt
of such subsidies, benefits and services. At the same time, it cannot
be disputed that once a person enrols himself and obtains Aadhaar
number as mentioned in Section 3 of the Aadhaar Act, such
B
Aadhaar number can be used for many other purposes. In fact,
this Aadhaar number becomes the Unique Identity (UID) of that
person. Having said that, it is clear that there is no provision in the
Aadhaar Act which makes enrolment compulsory. May be for
the purpose of obtaining benefits, proof of Aadhaar card is
necessary as per Section 7 of the Act. The proviso to Section 7 C
stipulates that if an Aadhaar number is not assigned to enable an
individual, he shall be offered alternate and viable means of
identification for delivery of the subsidy, benefit or service.
According to the petitioners, this proviso, which acknowledges
alternate and viable means of identification, and therefore makes
D
Aadhaar optional and voluntary and the enrolment is not necessary
even for the purpose of receiving subsidies, benefits and services
under various schemes of the Government. The respondents,
however, interpret the proviso differently and their plea is that the
words “if an Aadhaar number is not assigned to an individual”
deal with only that situation where application for Aadhaar has E
been made but for certain reasons Aadhaar number has not been
assigned as it may take some time to give Aadhaar card. Therefore,
this proviso is only by way of an interim measure till Aadhaar
number is assigned, which is otherwise compulsory for obtaining
certain benefits as stated in Section 7 of the Aadhaar Act. Fact
F
remai ns that as per the Government and U IDAI itself, the
requirement of obtaining Aadhaar number is voluntary. It has been
so claimed by UIDAI on its website and clarification to this effect
has also been issued by UIDAI.
95. Thus, enrolment under Aadhaar is voluntary. However, it is a
moot question as to whether for obtaining benefits as prescribed G
under Section 7 of the Aadhaar Act, it is mandatory to give Aadhaar
number or not is a debatable issue which we are not addressing
as this very issue is squarely raised which is the subject-matter of
other writ petition filed and pending in this Court.”
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414 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Therefore, the apprehension of the petitioners that Section 3 is

mandatory stands assuaged.
337. Section 5 is a special measure for issuance of Aadhaar number
to certain category of persons which attempts to take care of certain
disabilities with which certain individuals may be suffering. Therefore,
B this provision is for the benefit of the categories of persons mentioned in
Section 5. No doubt, it mentions children and persons with disabilities as
well, that is an aspect is already dealt with separately.
338. Section 6 deals only with the updation of demographic and
biometric information. This may become necessary under certain
C circumstances. That by itself does not take away the voluntary nature
of the programme.
339. Insofar Section 9 is concerned, validity thereof is challenged
primarily on the ground that it serves as a proof of citizenship and domicile
as well and some apprehensions are expressed on that basis. Such
D apprehensions have already been taken care of while discussing the
issue no. 1 pertaining to surveillance.
340. We have already discussed in detail the purpose of constituting
the Authority. In fact, the Act cannot operate without such an Authority
and, therefore, it’s constitution is imperative. Challenge to validity of
E Sections 11 to 23 is predicated on the arguments of surveillance etc.
fails, having regard to our detailed discussion on the said aspect.
341. Section 23 read with Section 54 give power to the Authority
to make certain Regulations. We do not find that this provision gives
excessive delegation to the Authority. These aspects have already been
F discussed while determining the issue pertaining to surveillance.
342. Apprehension expressed qua Section 29 are equally
unfounded. This Section rather imposes restrictions on sharing
information. No doubt, sub-section (2) states that the identity information
(and specifically excludes core biometric information) can be shared
only in accordance with the provisions of the Act and in such a manner
G
as may be specified by Regulations. That would not make the provision
unconstitutional when it is with the consent of the individual. In case,
any regulation is made which permits sharing of information that may
contain undesirable circumstance/reason for sharing information, such a
regulation can always be struck down. Insofar as sub-section (4) is
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 415
[A. K. SIKRI, J.]

concerned, it is generally in favour of the residents/individuals inasmuch A

as it states that information collected or created under this Act shall not
be published, displayed or posted publicly. The is grievance, however, is
that this provision enables the Authority to publish or display etc. such an
information ‘for the purposes as may be specified by regulations’. The
apprehension is that under this provision, the Government can always
B
make regulations permitting publication of such information under certain
circumstances. At present, regulations which are in force are the Aadhaar
(Sharing of Information) Regulations, 2016. Chapter II thereof is titled
‘restriction on sharing of identity information’. Regulation 3(1) which
falls under this chapter puts a categorical ban on sharing of core biometric
information collected by the Authority under the Act, by mandating that C
it shall not be sharing with anyone for any reason whatsoever. Sub-
regulation (2) of Regulation 3 permits sharing of demographic information
and photograph of an individual collected by the Authority under the Act,
only with the consent of the Aadhaar number holder, that too for
authentication process in accordance with Authentication Regulations.
D
As already held by us, insofar as utilisation of subsidies, benefits and
services are concerned, the authentication would be needed by the
provider of such services which would be the requesting entity and this
provision has already been upheld. Sub-regulation (3) permits sharing
of authentication records of Aadhaar number holder with him in
accordance with Regulation 28 of the Authentication Regulations. This E
provision facilitates obtaining the information from the Authority by the
Aadhaar number holder herself. We are, thus, of the opinion that Section
29 and the sharing regulations are the provisions enacted to protect the
interest of Aadhaar card holders as they put restrictions on the sharing
of information, which may be described as provisions pertaining to data
F
protection and surveying legitimate state aim/interest as well. No doubt,
Section 29 gives power to the delegatee to make regulations. However,
as already clarified above, as and when a regulation is made, which
impinges upon the privacy right of the Aadhaar card holders, that can
always be challenged. As of now, sharing regulations do not contain any
such provision. G
343. Section 33 provides for disclosure of information in certain
cases. The challenge to this provision is predicated on the ground that it
provides for the use of Aadhaar database for police verification, which
is against the ethos of Article 20(3) of the Constitution of India, which is
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416 SUPREME COURT REPORTS [2018] 8 S.C.R.

A a rule against self-incrimination. In order to appreciate this argument,

we would like to reproduce Section 33 in its entirety:
“33. (1) Nothing contained in sub-section (2) or sub-section (5) of
section 28 or sub-section (2) of section 29 shall apply in respect
of any disclosure of information, including identity information or
B authentication records, made pursuant to an order of a court not
inferior to that of a District Judge:
Provided that no order by the court under this sub-section shall be
made without giving an opportunity of hearing to the Authority.
(2) Nothing contained in sub-section (2) or sub-section (5) of
C section 28 and clause (b) of sub-section (1), sub-section (2) or
sub-section (3) of section 29 shall apply in respect of any disclosure
of information, including identity information or authentication
records, made in the interest of national security in pursuance of
a direction of an officer not below the rank of Joint Secretary to
D the Government of India specially authorised in this behalf by an
order of the Central Government:
Provided that every direction issued under this sub-section, shall
be reviewed by an Oversight Committee consisting of the Cabinet
Secretary and the Secretaries to the Government of India in the
E Department of Legal Affairs and the Department of Electronics
and Information Technology, before it takes effect:
Provided further that any direction issued under this sub-section
shall be valid for a period of three months from the date of its
issue, which may be extended for a further period of three months
F after the review by the Oversight Committee.”
344. A close look at sub-section (1) of Section 33 would
demonstrate that the sub-section (1) is an exception to Section 28(2),
Section 28(5) and Section 29(2) of the Act. Those provisions put a bar
on the disclosure of an information thereby protecting the information
available with the UIDAI in respect of any person. However, as per
G
sub-section (1), such information can be disclosed if there is an order of
a court which order is not inferior to that of a District Judge. This
provision, therefore, only states that in suitable cases, if court passes an
order directing an Authority to disclose such an information, then the
Authority would be obliged to do so. Thus, an embargo contained in
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 417
[A. K. SIKRI, J.]

Sections 28 and 29 is partially lifted only in the eventuality on passing an A

order by the court not inferior to that of District Judge. This itself is a
reasonable safeguard. Obviously, in any proceedings where the Court
feels such an information is necessary for the determination of controversy
that is before the Court, before passing such an order, it would hear the
concerned parties which will include the person in respect of whom the
B
disclosure of information is sought. We, therefore, clarify that provisions
of sub-section (1) of Section 33 by reading into the provisions that an
individual whose information is sought to be released shall be afforded
an opportunity of hearing. There is a reasonable presumption that the
said court shall take into consideration relevant law including Article
20(3) of the Constitution as well as privacy rights or other rights of that C
person before passing such an order. Moreover, a person in respect of
whom order is passed shall also be heard and will have right to challenge
the order in a higher forum. Not only this, proviso to Section 33(1) puts
an additional safeguard by providing that even UIDAI shall be heard
before an order is passed to this effect by the Court. In that sense, the
D
Authority is to act as trustee and it may object to passing of the order by
the court. Such a happening is actually taken place. We have already
noticed that against the order of the High Court of Bombay in some
criminal proceedings, order was passed directing the Authority to give
biometric information of a person, the Authority had filed Special Leave
Petition (Criminal) No. 2524 of 2014 challenging the said order on the E
ground that giving of such biometric information was contrary to the
provisions of the Aadhaar Act as the information was confidential. This
Court stays the operation of the said order which depicts that there are
sufficient safeguards provided in sub-section (1) of Section 33 itself.
345. Adverting to sub-section (2) of Section 33, it can be seen F
that this provision enables disclosure of information including identity
information records in the interest of national security. This provision
further states that the Authority is obliged to disclose such information in
pursuance of a direction of an officer not below the rank of Joint
Secretary to the Government of India specially authorised in this behalf
by an order of the Central Government. Proviso thereto sub-section (2) G
puts an additional safeguard by prescribing that every direction issued
under this sub-section shall be reviewed by an Oversight Committee
consisting of the Cabinet Secretary and the Secretaries to the Government
of India in the Department of Legal Affairs and the Department of
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418 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Electronics and Information Technology before it takes effect. Further,

such a direction is valid only for a period of three months from the date
of its issue which can be extended by another three months.
346. Main contention of the petitioners in challenging the provisions
of sub-section (2) of Section 33 are that no definition of national security
B is provided and, therefore, it is a loose ended provision susceptible to
misuse. It is also argued that there is no independent oversight disclosure
of such data on the ground of security and also that the provision is
unreasonable and disproportionate and, therefore, unconstitutional.
347. We may point out that this Court has held in Ex-Armymen’s
C Protection Services Private Limited v. Union of India & Ors.110 that
what is in the interest of national security is not a question of law but it is
a matter of policy. We would like to reproduce following discussion
therefrom:
“16. What is in the interest of national security is not a question of
D law. It is a matter of policy. It is not for the court to decide whether
something is in the interest of the State or not. It should be left to
the executive. To quote Lord Hoffman in Secy. of State for Home
Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002)
1 All ER 122 (HL)] : (AC p. 192C)

E “… [in the matter] of national security is not a question of law. It

is a matter of judgment and policy. Under the Constitution of the
United Kingdom and most other countries, decisions as to whether
something is or is not in the interests of national security are not a
matter for judicial decision. They are entrusted to the executive.”

F 17. Thus, in a situation of national security, a party cannot insist

for the strict observance of the principles of natural justice. In
such cases, it is the duty of the court to read into and provide for
statutory exclusion, if not expressly provided in the rules governing
the field. Depending on the facts of the particular case, it will
however be open to the court to satisfy itself whether there were
G justifiable facts, and in that regard, the court is entitled to call for
the files and see whether it is a case where the interest of national
security is involved. Once the State is of the stand that the issue
involves national security, the court shall not disclose the reasons
to the affected party.”
10
H (2014) 5 SCC 409
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 419
[A. K. SIKRI, J.]

348. Even in K.S. Puttaswamy, this Court has recognised data A

retention by the Government which may be necessitated in the public
interest and in the interest of national security. We may also usefully
refer to the judgment of People’s Union for Civil Liberties (PUCL) v.
Union of India & Anr.111. In that case, action of telephone tapping
was challenged as serious invasion of individual’s privacy. The Court
B
found that Section 5(2) of the Telegraph Act, 1885 permits the interception
of messages in circumstances mentioned therein i.e. ‘occurrence of any
public emergency’ or ‘in the interest of public safety’. The Court
explained these expressions in the following manner:
“28. Section 5(2) of the Act permits the interception of messages
in accordance with the provisions of the said section. “Occurrence C
of any public emergency” or “in the interest of public safety” are
the sine qua non for the application of the provisions of Section
5(2) of the Act. Unless a public emergency has occurred or the
interest of public safety demands, the authorities have no jurisdiction
to exercise the powers under the said section. Public emergency D
would mean the prevailing of a sudden condition or state of affairs
affecting the people at large calling for immediate action. The
expression “public safety” means the state or condition of freedom
from danger or risk for the people at large. When either of these
two conditions are not in existence, the Central Government or a
State Government or the authorised officer cannot resort to E
telephone-tapping even though there is satisfaction that it is
necessary or expedient so to do in the interests of sovereignty
and integrity of India etc. In other words, even if the Central
Government is satisfied that it is necessary or expedient so to do
in the interest of the sovereignty and integrity of India or the security F
of the State or friendly relations with sovereign States or public
order or for preventing incitement to the commission of an offence,
it cannot intercept the messages or resort to telephone-tapping
unless a public emergency has occurred or the interest of public
safety or the existence of the interest of public safety requires.
Neither the occurrence of public emergency nor the interest of G
public safety are secretive conditions or situations. Either of the
situations would be apparent to a reasonable person.”
349. Having regard to the aforesaid legal position, disclosure of
information in the interest of national security cannot be faulted with.
111
(1997) 1 SCC 301 H
420 SUPREME COURT REPORTS [2018] 8 S.C.R.

A However, we are of the opinion that giving of such important power in

the hands of Joint Secretary may not be appropriate. There has to be a
higher ranking officer along with, preferably, a Judicial Officer. The
provisions contained in Section 33(2) of the Act to the extent it gives
power to Joint Secretary is, therefore, struck down giving liberty to the
respondents to suitably enact a provision on the aforesaid lines, which
B
would adequately protect the interest of individuals.
350. We now advert to the challenge laid to Section 47 of the
Aadhaar Act, which is captioned as ‘cognizance of offences’, it reads
as under:
C “47. (1) No court shall take cognizance of any offence punishable
under this Act, save on a complaint made by the Authority or any
officer or person authorised by it.
(2) No court inferior to that of a Chief Metropolitan Magistrate or
a Chief Judicial Magistrate shall try any offence punishable under
D this Act.”
351. Certain acts in Chapter VII are treated as offences and
penalties are also provided, from Section 34 to Section 43.
352. Section 44 clarifies that this Act would apply for offence or
contravention committed even outside India. Insofar as investigation of
E these offences is concerned, Section 45 provides that a police officer
not below the rank of Inspector of Police shall investigate any offence
under this Act. Section 46, thereafter, clarifies that penalties imposed
under this Act shall not prevent the imposition of any other penalty or
punishment under any other law for the time being in force. This scheme
F of Chapter VII makes very strict provisions in respect of enforcement
of the Act which includes data protection as well. Last provision in
Chapter VII is Section 47 which provides that the cognizance would be
taken only on a complaint made by the Authority or any officer or person
authorised by it. Petitioners feel aggrieved by this provision as it does
not permit an individual citizen whose rights are violated, to initiate the
G criminal process. Apprehensions are expressed by submitting that there
may be a possibility where the Authority itself or some Governmental
Authority may be guilty of committing the offences under the Act and, in
such a situation, the Authority or any officer or person authorised by it
may choose not to file any complaint.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 421
[A. K. SIKRI, J.]

353. According to the respondents, the rationale behind Section A

47 is to maintain purity and integrity of CIDR and the entire enrolment
storage in the CIDR and authentication exercise can be handled only by
the Authority. For this reason, it is the Authority which is empowered to
lodge the complaint. It is also pointed out that similar provisions akin to
Section 47 of the Aadhaar Act are contained in many other statutes.
B
Reference is made to Section 22 of the Mines and Minerals (Development
and Regulation) Act, 1957, Section 34 of the Bureau of Indian Standards
Act, 1986, Section 34 of the Telecom Regulatory Authority of India Act,
1997, Section 47 of the Banking Regulation Act, 1949, Section 26(1) of
the Securities and Exchange Board of India Act, 1992, Section 19 of the
Environment (Protection) Act, 1986, Section 43 of the Air (Prevention C
and Control of Pollution) Act, 1981 and Section 57(1) of the Petroleum
and Natural Gas Regulatory Board Act, 2006. The respondents have
also submitted that validity of such provisions have been tested and
affirmed by this Court. Reference is made to the judgment in Raj Kumar
Gupta v. Lt. Governor, Delhi & Ors.112. The respondents have also
D
taken support of the decision of this Court in State (NCT of Delhi) v.
Sanjay113 wherein Section 22 of the Mines and Minerals (Development
and Regulation) Act, 1957 was tested. Insofar as grievance and
apprehension of the petitioners is concerned, it can be taken care on
interpreting the provisions by holding that the Authority can lodge a
complaint of its own motion or at the request of the individual whose E
rights are affected thereby.
Notwithstanding the above, we are of the opinion that it would be
in the fitness of things if Section 47 is amended by allowing individual/
victim whose right is violated, to file a complaint and initiate the
proceedings. We hope that this aspect shall be addressed at the F
appropriate level and if considered fit, Section 47 would be suitably
amended.
354. Section 48 cannot be treated as vague or arbitrary. ‘Public
Emergency’ is the expression which has been used in several other
enactments and held to be constitutional. It can always be subject to G
scrutiny of the Courts.
355. With this, now we come to a provision which was highly
debated. At the time of arguments, the petitioners had taken strong
112
(1997) 1 SCC 556
113
(2014) 9 SCC 772 H
422 SUPREME COURT REPORTS [2018] 8 S.C.R.

A exception to some of its aspects. We may first take note of the exact
language of this provision:
“57. Nothing contained in this Act shall prevent the use of Aadhaar
number for establishing the identity of an individual for any purpose,
whether by the State or any body corporate or person, pursuant
B to any law, for the time being in force, or any contract to this
effect: Provided that the use of Aadhaar number under this section
shall be subject to the procedure and obligations under section 8
and Chapter VI.”
356. In first blush, the provision appears to be innocuous. It enables
C Aadhaar holder to establish her identity for any purpose as well. In that
sense, it may amount to empowering the Aadhaar number holder, when
she is carrying unique identity. It is her identity card which she is able to
use not only for the purposes mentioned in the Aadhaar Act but also for
any other purpose.
D 357. The petitioners, however, have pricked the provision with
the submission that it may be susceptible to making deep in-roads in the
privacy of individuals and is utterly disproportionate. The taint in the
provision, as projected by the petitioners, is that it brings in private parties
as well, apart from the State within the fold of Aadhaar network giving
untrammeled opportunity to them to invade the privacy of such user.
E The offending portion of the provision, according to them, is that:
(a) It allows ‘any body corporate or person’ (thereby encompassing
private bodies/persons as well) to make use of authentication process,
once an individual offers Aadhaar number for establishing her identity.

F (b) The expression ‘for any purpose’ is wide enough, which may
be susceptible to misuse.
(c) This is permitted not only pursuant to any law for time being in
force but also pursuant to ‘any contract to this effect’ which would
mean that individuals may be forced to give their consent in the form of
contract for a purpose that may be justified or not thereby permitting the
G
private parties to collect biometric information about the said individual.
358. It is argued that there are no procedural safeguards governing
the actions of the private entities. Equally no remedy is provided in case
such body corporate or person fails or denies services. In this hue, it is
also argued that it is an excessive piece of legislation inasmuch as taking
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 423
[A. K. SIKRI, J.]

the umbrage of ‘any law’, the regulations etc. can be framed by including A
within its fold much more than what is provided by Section 7 of the
Aadhaar Act. It, therefore, according to the petitioners, does not meet
the test of proportionality. Mr. Divan submits that Section 57 is also
patently unconstitutional inasmuch as it allows an unrestricted extension
of the Aadhaar platform to users who may be government agencies or
B
private sector operators. Moreover, this provision enables the seeding of
the Aadhaar number across service providers and other gateways and
thereby enables the establishment of a surveillance state. The impugned
provision enables the spread of applications and Aadhaar dependent
delivery systems that are provided not from Consolidated Fund of India
resources but through any other means. He also submits that section 57 C
also enables commercial exploitation of an individual’s biometrics and
demographic information by the Respondents as well as private entities.
359. As mentioned above, the respondents contend that it is only
an enabling provision which gives further facilities to Aadhaar card holder,
as per her choice and is, thus, enacted for the benefit of such individuals. D
360. We have already discussed in detail the principles on which
doctrine of proportionality is built upon and the test which need to be
satisfied. To put in nutshell, the proportionality principles seek to
safeguard citizens from excessive Government measures. The inquiry,
in such cases, is that a particular measure must not be disproportionate E
in two distinctive utilitarian senses:
(i) The cost or burdens of the measure must not clearly exceed
the likely benefits, which can be described as ‘ends’ or ‘ends-benefits’
proportionality.
(ii) The measure must not be clearly more costly or more F
burdensome than equally alternative measures, which is also described
by some jurists as a concept of necessity and narrow tailoring and can
be referred to as ‘means’ or ‘alternative-means’ proportionality.
361. We have also discussed in detail the principle of proportionality
that is developed in certain foreign legal regimes, particularly Germany G
and Canada. The Supreme Court of Canada in R. v. Oakes114 developed
a two-tier constitutional control test. Once the claimant has proved a
violation of a right guaranteed in the charter, the government must satisfy
114
(1986) 1 SCR 103
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424 SUPREME COURT REPORTS [2018] 8 S.C.R.

A two criteria to establish that the limit on individual rights “can be

demonstrably justified in a free and democratic society.”
362. First, measures limiting a constitutionally protected right must
serve an important objective that “relate[s] to concerns which are pressing
and substantial in a free and democratic society.” Legislation limiting the
B rights of English-speaking parents in Quebec to educate their children in
English-speaking schools115 has been found lacking an important public
objective. Likewise, the Supreme Court of Canada was unable to find
any legitimate public objective that justified denying protection to gays
and lesbians under Alberta’s human rights law in Vriend v. Alberta116.
In R. v. Zundel117, it also prohibited an intrusive use of a law that was
C unrelated to the objectives originally contemplated by the Parliament
when that law was enacted.
363. Secondly, once an important public objective or end has been
established, the selected means to attain it must be “reasonable and
demonstrably justified.” The Court said in R. v. Big M Drug Mart
D Ltd.118 that this determination involves “a form of proportionality test”.
Although, it varies depending on the facts of the case, the test involves
the balancing of public and individual interests based on three principles,
which are as follows:
(i) the means must be rationally related to the objective. The
E court has infrequently struck down legislation for lack of any rational
relation to the objective pursued. It employs a rather deferential and
contextual approach to determine the rational relation of a provision to
the desired end.
(ii) The means should “impair ‘as little as possible’ the right or
F freedom in question.” This is believe to be the decisive element of
proportionality review. It requires that the legislature adopt the least
intrusive measure capable of attaining the desired objective.
(iii) The public objective and actual effects of the means adopted
for its attainment must be proportionate to an important public end or
G objective. The court noted that even if the means satisfies the first two
criteria, it may be declared unconstitutional in view of its disproportionate
harmful effects on an individual.
115
Quebec Ass’n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66
116
(1998) 1 SCR 493
117
(1992) 2 SCR 731
H 118
(1985) 1 SCR 295
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 425
[A. K. SIKRI, J.]

364. Insofar as development of law in Germany is concerned, as A

already discussed in detail, proportionality is defined “as an expression
of general right of the citizen towards the State that his freedom should
be limited by the public authorities only to the extent indispensable for
the protection of the public interest.”119 The principle of proportionality
in German law incorporates three important subprinciples: suitability,
B
necessity, and proportionality in the narrower sense. According to the
High Court of Germany, any government interference with basic rights
must be suitable and necessary for reaching the ends sought. Its
disadvantages to individuals “are generally only permissible if the protection
of others or of the public interest requires them, after having due regard
to the principle of proportionality.” C
365. The European Union has, by and large, adopted the German
system. We have also taken note of the development of doctrine of
proportionality in India through various judgments120.
366. We may mention here that insofar as U.S. Supreme Court is
concerned, it has refused to apply the least intrusive test 121 Though there D
was a debate at the bar as to whether this Court should adopt European
approach of applying least intrusive test or go by American approach
which repeatedly refused to apply this test. Without going into this debate,
even when we apply the accepted norms laid down by this Court in
Modern Dental College and Research Centre and K.S. Puttaswamy E
cases, we are of the view that a part of Section 57 does not pass the
muster of proportionality doctrine.
367. The respondents may be right in their explanation that it is
only an enabling provision which entitles Aadhaar number holder to take
the help of Aadhaar for the purpose of establishing his/her identity. If
F
such a person voluntary wants to offer Aadhaar card as a proof of his/
her identity, there may not be a problem.
119
See Nicholas Emiliou, The Principle of Proportionality in European Law: A
comparative Study 5 (Kluwer Law Int’l. 1996).
120
Om Kumar & Ors. v. Union of India, (2001) 2 SCC 386 where R. v. Oakes was
referred to and relied upon; Teri Oat Estates (P) Ltd. v. U.T., Chandigarh & Ors.,
(2004) 2 SCC 130 where the Court stressed upon maintaining a proper balance G
between adverse effect 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; Modern Dental College and Research Centre and K.S.
Puttaswamy amongst others.
121
Vernonia School District v. Wayne Acton, 515 US 646, 132 L.Ed. 2D 564, Board of
Education of Independent School District v. Lindsay Earls, 536 US 822=153 L.Ed.2d.
735. H
426 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 368. Section 59, which is the last provision in the Act is aimed at
validating actions taken by the Central Government pursuant to
notification dated January 28, 2009 till the passing of the Act. It reads as
under:
“59. Anything done or any action taken by the Central Government
B under the Resolution of the Government of India, Planning
Commission bearing notification number A-43011/02/2009-Admin.
I, dated the 28th January, 2009, or by the Department of Electronics
and Information Technology under the Cabinet Secretariat
Notification bearing notification number S.O. 2492(E), dated the
12th September, 2015, as the case may be, shall be deemed to
C have been validly done or taken under this Act.”
369. The challenge to this provision is on the premise that in the
regime which prevailed prior to the passing of the Act and the enrolments
into Aadhaar scheme were done, that happened without the consent of
the persons who sought enrolment and, therefore, those enrolments
D cannot be validated by making such a provision. It was argued that
even the Act makes provisions for informed consent which is to be
obtained from individuals at the time of enrolment and absence of such
consent makes the very enrolment as impermissible thereby violating
the right to privacy and such acts cannot be validated.
E 370. The contention of the respondents, on the other hand, is that
by the very nature of the provision, it is intended to be prospective in
nature with a clear purport in mind, namely, to validate the notification
dated August 21, 2009 vide which the Authority was created and the
Aadhaar scheme was launched by administrative fiat. The purpose is to
F give it a statutory backing.
371. We find that Section 59 uses the expression ‘anything done
or any action under the resolution’. According to us, this terminology
used in the provision by the legislature is clearly to cover all actions of
the Authority including enrolment of individuals into Aadhaar scheme.
G The words ‘shall be deemed to have been validly done or taken under
this Act’ at the end of the Section put the things beyond any pale of
doubt. The legislative intent is clear, namely, to make the provision
retrospective so as to cover the actions of the Authority from the date of
its establishment. Reading the provision in the manner the petitioners
suggest would have the effect of annulling Section 59 itself. Such an
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 427
[A. K. SIKRI, J.]

interpretation cannot be countenanced. We are of the opinion that case A

is squarely covered by the Constitution Bench judgment of this Court in
West Ramnad Electric Distribution Co., Ltd. v. State of Madras &
Anr.122 as well as Bishambhar Nath Kohli & Ors. v. State of Uttar
Pradesh & Ors.123.
372. We would also like to point out that the submission of the B
petitioners that a particular action or a provision or statute which is hit by
Article 14 cannot be allowed to be validated is repelled by this Court in
State of Mysore & Anr. v. D. Achiah Chetty, Etc.124.
The legislature is, thus, empowered to incorporate deeming
provisions in a statute. This proposition has also been repeatedly affirmed C
by this Court. We may refer in this behalf the decision in State of
Karnataka v. State of Tamil Nadu & Ors.125 will be of relevance wherein
the Court held as under:
“72. The second limb of submission of Mr Rohatgi as regards the
maintainability pertains to the language employed under Section D
6(2) of the 1956 Act, which reads as follows:
“6. (2) The decision of the Tribunal, after its publication in the
Official Gazette by the Central Government under sub-section
(1), shall have the same force as an order or decree of the
Supreme Court.” E
73. Relying on Section 6(2), which was introduced by way of the
Amendment Act, 2002 (Act 14 of 2002) that came into force
from 6-8-2002, it is submitted by Mr Rohatgi that the jurisdiction
of this Court is ousted as it cannot sit over in appeal on its own
decree. The said submission is seriously resisted by Mr Nariman F
and Mr Naphade, learned Senior Counsel contending that the said
provision, if it is to be interpreted to exclude the jurisdiction of the
Supreme Court of India, it has to be supported by a constitutional
amendment adding at the end of Article 136(2) the words “or to
any determination of any tribunal constituted under the law made
by Parliament under Article 262(2)” and, in such a situation, in all G
possibility such an amendment to the Constitution may be ultra
122
(1963) 2 SCR 747
123
(1966) 2 SCR 158
124
(1969) 1 SCC 248
125
(2017) 3 SCC 362 H
428 SUPREME COURT REPORTS [2018] 8 S.C.R.

A vires affecting the power of judicial review which is a part of

basic feature of the Constitution. The learned Senior Counsel for
the respondent has drawn a distinction between the conferment
and the exclusion of the power of the Supreme Court of India by
the original Constitution and any exclusion by the constitutional
amendment. Be that as it may, the said aspect need not be adverted
B
to, as we are only required to interpret Section 6(2) as it exists
today on the statute book. The said provision has been inserted to
provide teeth to the decision of the Tribunal after its publication in
the Official Gazette by the Central Government and this has been
done keeping in view the Sarkaria Commission’s Report on Centre-
C State Relations (1980). The relevant extract of the Sarkaria
Commission’s Report reads as follows:
“17.4.19. The Act was amended in 1980 and Section 6-A was
inserted. This section provides for framing a scheme for giving
effect to a Tribunal’s award. The scheme, inter alia provides
D for the establishment of the authority, its term of office and
other conditions of service, etc. But the mere creation of such
an agency will not be able to ensure implementation of a
Tribunal’s award. Any agency set up under Section 6-A cannot
really function without the cooperation of the States concerned.
Further, to make a Tribunal’s award binding and effectively
E enforceable, it should have the same force and sanction behind
it as an order or decree of the Supreme Court. We recommend
that the Act should be suitably amended for this purpose.
***

F 17.6.05. The Inter-State Water Disputes Act, 1956 should be

amended so that a Tribunal’s award has the same force and
sanction behind it as an order or decree of the Supreme Court
to make a Tribunal’s award really binding.”
74. The Report of the Commission as the language would suggest,
G was to make the final decision of the Tribunal binding on both the
States and once it is treated as a decree of this Court, then it has
the binding effect. It was suggested to make the award effectively
enforceable. The language employed in Section 6(2) suggests that
the decision of the Tribunal shall have the same force as the order
or decree of this Court. There is a distinction between having the
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 429
[A. K. SIKRI, J.]

same force as an order or decree of this Court and passing of a A

decree by this Court after due adjudication. Parliament has
intentionally used the words from which it can be construed that a
legal fiction is meant to serve the purpose for which the fiction
has been created and not intended to travel beyond it. The purpose
is to have the binding effect of the Tribunal’s award and the
B
effectiveness of enforceability. Thus, it has to be narrowly
construed regard being had to the purpose it is meant to serve.
75. In this context, we may usefully refer to the Principles of
Statutory Interpretation, 14th Edn. by G.P. Singh. The learned
author has expressed thus:
C
“In interpreting a provision creating a legal fiction, the court is
to ascertain for what purpose the fiction is created [State of
Travancore-Cochin v. Shanmugha Vilas Cashewnut
Factory, AIR 1953 SC 333; State of Bombay v. Pandurang
Vinayak, AIR 1953 SC 244 : 1953 Cri LJ 1094] , and after
ascertaining this, the Court is to assume all those facts and D
consequences which are incidental or inevitable corollaries to
the giving effect to the fiction. [East End Dwellings Co. Ltd.v.
Finsbury Borough Council, 1952 AC 109 : (1951) 2 All ER
587 (HL); CIT v. S. Teja Singh, AIR 1959 SC 352] But in so
construing the fiction it is not to be extended beyond the purpose E
for which it is created [Bengal Immunity Co. Ltd. v. State of
Bihar, AIR 1955 SC 661; CIT v. Amarchand N. Shroff, AIR
1963 SC 1448], or beyond the language of the section by which
it is created. [CIT v. Shakuntala, AIR 1966 SC 719; Mancheri
Puthusseri Ahmed v. Kuthiravattam Estate Receiver, (1996)
6 SCC 185 : AIR 1997 SC 208] It cannot also be extended by F
importing another fiction. [CIT v. Moon Mills Ltd., AIR 1966
SC 870] The principles stated above are ‘well-settled’. [State
of W.B. v. Sadan K. Bormal, (2004) 6 SCC 59 : 2004 SCC
(Cri) 1739 : AIR 2004 SC 3666] A legal fiction may also be
interpreted narrowly to make the statute workable. G
[Nandkishore Ganesh Joshi v. Commr., Municipal Corpn.
of Kalyan and Dombivali, (2004) 11 SCC 417 : AIR 2005 SC
34] “
76. In Aneeta Hada v. Godfather Travels and Tours [Aneeta
Hada v. Godfather Travels and Tours, (2012) 5 SCC 661 : (2012)
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430 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , a three-Judge Bench

has ruled thus: (SCC p. 681, paras 37-38)
“37. In State of T.N. v. Arooran Sugars Ltd. [State of T.N. v.
Arooran Sugars Ltd., (1997) 1 SCC 326] the Constitution
Bench, while dealing with the deeming provision in a statute,
B ruled that the role of a provision in a statute creating legal
fiction is well settled. Reference was made to Chief Inspector
of Mines v. Karam Chand Thapar [Chief Inspector of Mines
v. Karam Chand Thapar, AIR 1961 SC 838 : (1961) 2 Cri LJ
1], J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of
India[J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of
C India, 1987 Supp SCC 350 : 1988 SCC (Tax) 26], M.
Venugopal v. LIC [M. Venugopal v. LIC, (1994) 2 SCC 323 :
1994 SCC (L&S) 664] and Harish Tandon v. ADM,
Allahabad [Harish Tandon v. ADM, Allahabad, (1995) 1
SCC 537] and eventually, it was held that when a statute creates
D a legal fiction saying that something shall be deemed to have
been done which in fact and truth has not been done, the Court
has to examine and ascertain as to for what purpose and between
which persons such a statutory fiction is to be resorted to and
thereafter, the courts have to give full effect to such a statutory
fiction and it has to be carried to its logical conclusion.
E
38. From the aforesaid pronouncements, the principle that can
be culled out is that it is the bounden duty of the court to
ascertain for what purpose the legal fiction has been created.
It is also the duty of the court to imagine the fiction with all real
consequences and instances unless prohibited from doing so.
F That apart, the use of the term “deemed” has to be read in its
context and further, the fullest logical purpose and import are
to be understood. It is because in modern legislation, the term
“deemed” has been used for manifold purposes. The object of
the legislature has to be kept in mind.”
G 77. In Hari Ram [State of U.P. v. Hari Ram, (2013) 4 SCC
280 : (2013) 2 SCC (Civ) 583] , the Court has held that (SCC p.
293, para 18) in interpreting the provision creating a legal fiction,
the court is to ascertain for what purpose the fiction is created
and after ascertaining the same, the court is to assume all those
facts and consequences which are incidental or inevitable
H corollaries for giving effect to the fiction.”
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 431
[A. K. SIKRI, J.]

373. There is yet another angle from which the matter can be A
looked into. In any case, when the Aadhaar scheme/project under the
Act has been saved from the challenge to its constitutionality, we see no
reason to invalidate the enrolments which were made prior to the passing
of this Act as it would lead to unnecessary burden and exercise of enrolling
these persons all over again. Instead the problem can be solved by eliciting
B
‘consent’ of all those persons who were enrolled prior to the passing of
the Act. Since, we have held that enrolment is voluntary in nature, those
who specifically refuse to give the consent, they would be allowed to
exit from Aadhaar scheme. After all, by getting Aadhaar card, an
individual so enrolled is getting a form of identity card. It would still be
open to such an individual to make use of the said Aadhaar number or C
not. Those persons who need to avail any subsidy, benefit or service
would need Aadhaar in any case. It would not be proper to cancel their
Aadhaar cards. If direction is given to invalidate all those enrolments
which were made prior to 2016 then such persons will have to undergo
the rigours of getting themselves enrolled all over again. On the other
D
hand, those who do not get any benefit of the nature prescribed under
Section 7 of the Act, it would always be open for them not to make use
of Aadhaar card or to make use of this card in a limited sense, namely,
showing it as a proof of their identity, without undergoing any authentication
process. Therefore, to a large extent, it does not harm this later category
as well. E
We, thus, uphold the validity of Section 59. As a corollary, Aadhaar
for the period from 2009 to 2016 also stands validated.
LIMITED GOVERNMENT, GOOD GOVERNANCE,
CONSTITUTIONAL TRUST AND CONSTITUTIONALISM F
374. Mr. Shyam Divan and Mr. Gopal Subramanium, learned senior
counsel, submit that a fundamental feature of the Constitution is the
sovereignty of the people with limited government authority. The
Constitution limits governmental authority in various ways, amongst them
Fundamental Rights, the distribution of powers amongst organs of the G
state and the ultimate check by way of judicial review. Article 245 of the
Constitution of India is an express embodiment of the principle of limited
government to the legislature inasmuch as it subjects laws to the
Constitution:

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432 SUPREME COURT REPORTS [2018] 8 S.C.R.

A “(1) Subject to the provisions of this Constitution, Parliament may

make laws for the whole or any part of the territory of India, and
the Legislature of a State may make laws for the whole or any
part of the State.”
375. The concept of limited government is the underlying difference
B between a ‘Constitution’ and ‘Constitutionalism’. Mr. Shyam Divan refers
to the introductory chapter of his book Indian Constitutional Law, Prof.
M.P. Jain writes:
“Modern political thought draws a distinction between
‘Constitutionalism’ and ‘Constitution’. A country may have the
C ‘Constitution’ but not necessary ‘Constitutionalism’. For example,
a country with a dictatorship, where the dictator’s word is law,
can be said to have a ‘Constitution’ but not ‘Constitutionalism’.
The underlying difference between the two concepts is that a
Constitution ought not merely to confer powers on the various
D organs of the government, but also seek to restrain those powers.
Constitutionalism recognises the need for government but insists
upon limitations being placed upon governmental powers.
Constitutionalism envisages checks and balances and putting the
powers of the legislature and the executive under some restraints
and not making them uncontrolled and arbitrary. Unlimited powers
E jeopardise freedom of the people ... If the Constitution confers
unrestrained power on either the legislature or the executive, it
might lead to an authoritarian, oppressive government... to preserve
the basic freedoms of the individual, and to maintain his dignity
and personality, the Constitution should be permeated with
F ‘Constitutionalism’: it should have some in-built restrictions on the
powers conferred by it on governmental organs.
‘Constitutionalism’ connotes in essence limited government or a
limitation on government. Constitutionalism is the antithesis of
arbitrary powers…
G ... As PROFESSOR VILE has remarked: “Western institutional
theorists have concerned themselves with the problems of ensuring
that the exercise of governmental power...should be controlled in
order that it should not itself be destructive of the values it was
intended to promote.”
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 433
[A. K. SIKRI, J.]

376. Mr. Divan then cited various paragraphs from the cases of A
State of M.P. v. Thakur Bharat Singh126, (1967) 2 SCR 454, Gobind
v. State of M.P.127, S.P. Sampath Kumar v. Union of India128, Sub-
Committee on Judicial Accountability v. Union of India 129, I.R.
Coelho v. State of T.N.130, Nandini Sundar v. State of Chhattisgarh131,
which have reiterated and upheld the principle of limited governments
B
and constitutionalism as a fundamental principle of our constitutional
scheme.
377. He submitted that limited government is also enshrined within
our Preamble, which is the essence of the Constitution of India, and
entitles every individual citizen and the citizenry collectively to live, work,
and enjoy their varied lives without being under the continuous gaze of C
the State. He cites Chelameswar, J. in K.S. Puttaswamy wherein he
observed:
“The Constitution of any country reflects the aspirations and goals
of the people of that country (…) The Constitution cannot be
seen as a document written in ink to replace one legal regime by D
another. It is a testament created for securing the goals professed
in the Preamble. Part-III of the Constitution is incorporated to
ensure achievement of the objects contained in the Preamble.
‘We the People’ of this country are the intended beneficiaries of
the Constitution. Man is not a creature of the State. Life and E
liberty are not granted by the Constitution. Constitution only
stipulates the limitations on the power of the State to interfere
with our life and liberty. Law is essential to enjoy the fruits of
liberty; it is not the source of liberty and emphatically not the
exclusive source.”
F
378. The Directive Principles of State Policy also envisage a limited
government. Violation of fundamental rights cannot be justified by the
State on grounds of administrative convenience in meeting its obligations
under the Directive Principles of State Policy. Protection of fundamental
rights is essential for public welfare contemplated under the Directive
G
126
(1967) 2 SCR 454
127
(1975) 2 SCC 148
128
(1987) 1 SCC 124
129
(1991) 4 SCC 699
130
(2007) 2 SCC 1
131
(2011) 7 SCC 547 H
434 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Principles of State Policy. This has been upheld in various cases such as
Minerva Mills Ltd. v. Union of India132, where Y.V. Chandrachud,
C.J observed:
“57. (…) just as the rights conferred by Part III would be without
a radar and a compass if they were not geared to an ideal, in the
B same manner the attainment of the ideals set out in Part IV would
become a pretence for tyranny if the price to be paid for achieving
that ideal is human freedoms.”
379. Similarly, in Kesavananda Bharati v. State of Kerala133,
S.M. Sikri, C.J., inter alia, held:
C “209. ...In my view that meaning would be appropriate which
would enable the country to achieve a social and economic
revolution without destroying the democratic structure of the
Constitution and the basic inalienable rights guaranteed in Part III
and without going outside the contours delineated in the Preamble.
D xx xx xx
299. I am unable to hold that these provisions show that some
rights are not natural or inalienable rights. As a matter of fact,
India was a party to the Universal Declaration of Rights which I
have already referred to and that Declaration describes some
E fundamental rights as inalienable. Various decisions of this Court
describe fundamental rights as ‘natural rights’ or ‘human rights’ ...”
380. Mr. Divan quotes Seervai in his book Constitutional Law of
India134: A Critical Commentary where he writes:

F “17.14... In India “Public Welfare” and “Welfare State” became

in the language of the Chaldean Oracle, “God-given names of
unexplained power”, which absolved judges from a critical
examination of the nature of fundamental rights, and why they
were made legally enforceable and the nature of directive
principles and why they were made legally unenforceable
G
xx xx xx

132
(1980) 3 SCC 625
133
(1973) 4 SCC 225
134
H.M. Seervai, Constitutional Law of India: A Critical Commentary (N.M. Tripathi
Private Limited, Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937.
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 435
[A. K. SIKRI, J.]

17.20...it is simply not true that persons entrusted with the duty of A
implementing the directives will strive in good faith to implement
them according to the expectations of the community.
xx xx xx
The question then arises: What is the agency for bringing about
social and economic changes which would enable a welfare state B
to be created? The answer is, legislative and executive power
controlled by constitutional limitations including fundamental
rights …
xx xx xx
C
17.30 ... the conferment of legally enforceable fundamental rights
by our Constitution on persons, citizens and groups of persons
was the most effective way of securing public welfare...Anything
which enables those objectives to be realised as fully as is
practicable must, broadly speaking, subserve public
welfare...However, the Preamble, and to a large extent, D
Fundamental Rights, enable us to say that our Constitution has
rejected a totalitarian form of government in favour of a liberal
democracy. The emphasis of the Preamble is on securing the
dignity of the individual …
xx xx xx E
17.34 But can fundamental rights acting as limitations on legislative
and executive power secure public welfare as the framers of our
Constitution intended? The answer is “Yes”. For, when during the
Emergency of 1975-77, almost all the fetters on legislative power
became unenforceable, the public welfare suffered gravely and F
our free democratic constitution was twisted out of shape and
came near to a dictatorship or a Police State ...”
381. The principles of constitutional trust, constitutional morality
and good governance are also deeply intertwined with the principle of
minimum government. In Manoj Narula v. Union of India135, the G
Court, inter alia, held:
“1. … Democracy, which has been best defined as the government
of the people, by the people and for the people, expects prevalence
135
(2014) 9 SCC 1
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436 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of genuine orderliness, positive propriety, dedicated discipline and

sanguine sanctity by constant affirmance of constitutional morality
which is the pillar stone of good governance.
xx xx xx
75. The principle of constitutional morality basically means to bow
B down to the norms of the Constitution and not to act in a manner
which would become violative of the rule of law or reflectible of
action in an arbitrary manner. It actually works at the fulcrum and
guides as a laser beam in institution building. The traditions and
conventions have to grow to sustain the value of such a morality.
C The democratic values survive and become successful where the
people at large and the persons in charge of the institution are
strictly guided by the constitutional parameters without paving the
path of deviancy and reflecting in action the primary concern to
maintain institutional integrity and the requisite constitutional
restraints. Commitment to the Constitution is a facet of
D constitutional morality.”
xx xx xx
82. In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as the
E primary one and any other interest secondary. The maxim salus
populi suprema lex, has not only to be kept in view but also has to
be revered. The faith of the people is embedded in the root of the
idea of good governance which means reverence for citizenry
rights, respect for fundamental rights and statutory rights in any
governmental action, deference for unwritten constitutional values,
F veneration for institutional integrity, and inculcation of accountability
to the collective at large. It also conveys that the decisions are
taken by the decision-making authority with solemn sincerity and
policies are framed keeping in view the welfare of the people,
and including all in a homogeneous compartment. The concept of
G good governance is not a Utopian conception or an abstraction. It
has been the demand of the polity wherever democracy is
nourished. The growth of democracy is dependent upon good
governance in reality and the aspiration of the people basically is
that the administration is carried out by people with responsibility
with service orientation.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 437
[A. K. SIKRI, J.]

83. … The issue of constitutional trust arises in the context of the A

debate in the Constituent Assembly that had taken place pertaining
to the recommendation for appointment of a Minister to the Council
of Ministers. Responding to the proposal for the amendment
suggested by Prof. K.T. Shah with regard to the introduction of a
disqualification of a convicted person becoming a Minister, Dr
B
B.R. Ambedkar had replied: (CAD Vol. VII, p. 1160)
“His last proposition is that no person who is convicted may be
appointed a Minister of the State. Well, so far as his intention
is concerned, it is no doubt very laudable and I do not think any
Member of this House would like to differ from him on that
proposition. But the whole question is this: whether we should C
introduce all these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not sufficient that we
should trust the Prime Minister, the legislature and the public
at large watching the actions of the Ministers and the actions
of the legislature to see that no such infamous thing is done by D
either of them?I think this is a case which may eminently be
left to the good sense of the Prime Minister and to the good
sense of the legislature with the general public holding a
watching brief upon them. I therefore say that these
amendments are unnecessary.”
E
382. It is submitted by Mr. Divan that the Aadhaar project is
destructive of limited government, constitutionalism and constitutional
trust. The Constitution is not about the power of the State, but about the
limits on the power of the State. Post Aadhaar, the State will completely
dominate the citizen and alter the relationship between citizen and State.
The features of a Totalitarian State is seen from: F

(a) A person cannot conduct routine activities such as operating a

bank account, holding an investment in mutual funds, receiving
government pension, receiving scholarship, receiving food rations,
operating a mobile phone without the State knowing about these
activities.(Sections 7, 32 and 57 of the Aadhaar Act). G
(b) The State can build a profile of the individual based on the trail
of authentication from which the nature of the citizen’s activity
can be determined. (Sections 2(d) and 32 of the Aadhaar Act and
Regulation 20, 26 and 27 of the Aadhaar (Authentication)
Regulation, 2016. H
438 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (c) By disabling Aadhaar the State can cause the civil death of
the person.(Sections 23(2)(g) of the Aadhaar Act and Regulation
27 and 28 of the Aadhaar (Enrolment and Updates) Act, 2016).
(d) By making Aadhaar compulsory for other activities such as
air travel, rail travel, directorship in companies, services and
B benefits extended by State governments and municipal
corporations etc. there will be virtually no zone of activity left
where the citizen is not under the gaze of the State. This will have
a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy. The
C State is pervasive, and dignity of the individual stands extinguished.
(f) This is an inversion of the accountability in the Right to
Information age: instead of the State being transparent to the
citizen, it is the citizen who is rendered transparent to the State.
383. Mr. Sibal also added that accountability of governments and
D the state is a phenomenon which is accepted across the world. In
furtherance of the Right to information Act, 2005 was passed intended
to ensure transparency and state accountability. Through Aadhaar, on
the other hand, the state seeks transparency and accountability of an
individual’s multifarious activities in the course of his everyday life. This
E fundamentally alters the relationship between the citizen and the State
and skews the balance of power in favour of the State, which is anathema
to the Constitution.
384. There is no dispute about the exposition of the principles of
limited government and good governance, etc., as highlighted by the
F learned counsel for the petitioners and noted above.
We may add that we are the Republic and it becomes the duty
of the Court to keep it. That can be achieved by asking the stakeholders
to follow the Constitution, which we have. There are six key constitutional
notions, a brilliant exposition whereof has been provided in the case of
Manoj Narula v. Union of India136. The idea of constitutional renaissance
G
was first sounded in the said judgment. It is further elaborated in the
case of Government of NCT of Delhi v. Union of India137 in the opinion
penned down by one of us138. It stands severally described now as “a
136
(2014) 9 SCC 1
137
(2018) SCC Online SC 661
138
Dipak Misra, CJI
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 439
[A. K. SIKRI, J.]

constant awakening as regards the text, context, perspective, purpose, A

and the rule of law”, an awakening that makes space for a “resurgent
constitutionalism” and “allows no room for absolutism” nor any “space
for anarchy”. It is held, therein the term “rational anarchism” has “no
entry in the field of constitutional governance or the rule of law” and by
the same token constitutional text and context resolutely repudiate the
B
lineages of absolutism or the itineraries of dictatorship. One may then
say that “constitutionalism” is the space between “absolutism” and
“anarchy” and its constant repair and renewal is the prime function of
adjudication.
385. In an illuminating Article titled ‘A Constitutional
Renaissance’ on the aforesaid verdict authored by Prof. Upendra C
Baxi139, the learned Professor has made following pertinent comments:
“Awakening is a constant process; renaissance has a beginning
but knows no end because everyday fidelity to the vision, spirit
and letter of the Constitution is the supreme obligation of all
constitutional beings. One ought to witness in daily decisions an D
“acceptance of constitutional obligations” not just within the text
of the Constitution but also its “silences”. To thus reawaken is to
be “obeisant to the constitutional conscience with a sense of
constitutional vision”. Second, courts should adopt that approach
to interpretation which “glorifies the democratic spirit of the E
Constitution”. “Reverence” for the Constitution (or
constitutionalism) is the essential first step towards constitutional
renaissance. Third, people are the true sovereigns, never to be
reduced to the servile status of being a subject; rather as beings
with rights, they are the source of trust in governance and founts
of legitimacy. The relatively autonomous legislative, executive, F
administrative and adjudicatory powers are legitimate only when
placed at the service of constitutional ends. All forms of public
power are held in trust. And political power is not an end but a
means to constitutional governance.”
386. Since the arguments on limited government advanced by G
Mr. Shyam Divan were the same as advanced by him during the hearing
of Binoy Viswam, our purpose would be served by reproducing the
following discussion from the said judgment:
139
Published in The Indian Express on July 16, 2018
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440 SUPREME COURT REPORTS [2018] 8 S.C.R.

A “85. There cannot be any dispute about the manner in which Mr

Shyam Divan explained the concept of “limited Government” in
his submissions. Undoubtedly, the Constitution of India, as an
instrument of governance of the State, delineates the functions
and powers of each wing of the State, namely, the Legislature,
the Judiciary and the Executive. It also enshrines the principle of
B
separation of powers which mandates that each wing of the State
has to function within its own domain and no wing of the State is
entitled to trample over the function assigned to the other wing of
the State. This fundamental document of governance also contains
principle of federalism wherein the Union is assigned certain
C powers and likewise powers of the State are also prescribed. In
this context, the Union Legislature i.e. Parliament, as well as the
State Legislatures are given specific areas in respect of which
they have power to legislate. That is so stipulated in Schedule VII
to the Constitution wherein List I enumerates the subjects over
which Parliament has the dominion, List II spells out those areas
D
where the State Legislatures have the power to make laws while
List III is the Concurrent List which is accessible both to the
Union as well as the State Governments. The scheme pertaining
to making laws by Parliament as well as by the legislatures of the
State is primarily contained in Articles 245 to 254 of the Constitution.
E Therefore, it cannot be disputed that each wing of the State has
to act within the sphere delineated for it under the Constitution. It
is correct that crossing these limits would render the action of the
State ultra vires the Constitution. When it comes to power of
taxation, undoubtedly, power to tax is treated as sovereign power
of any State. However, there are constitutional limitations briefly
F
described above.
86. In a nine Judge Bench decision of this Court in Jindal Stainless
Ltd. & Anr. v. State of Haryana & Ors. discussion on these
constitutional limitations are as follows:
G “20. Exercise of sovereign power is, however, subject to
Constitutional limitations especially in a federal system like ours
where the States also to the extent permissible exercise the power
to make laws including laws that levy taxes, duties and fees.
That the power to levy taxes is subject to constitutional limitations
is no longer res-integra. A Constitution Bench of this Court has
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 441
[A. K. SIKRI, J.]

in Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 A

SCC 109 recognised that in India the Centre and the States both
enjoy the exercise of sovereign power, to the extent the
Constitution confers upon them that power. This Court declared:
“56 … We would not like, however, to embark upon any theory
of police power because the Indian Constitution does not B
recognise police power as such. But we must recognise the
exercise of Sovereign power which gives the State sufficient
authority to enact any law subject to the limitations of the
Constitution to discharge its functions. Hence, the Indian
Constitution as a sovereign State has power to legislate on all
branches except to the limitation as to the division of powers C
between the Centre and the States and also subject to the
fundamental rights guaranteed under the Constitution. The
Indian States, between the Centre and the States, has sovereign
power. The sovereign power is plenary and inherent in every
sovereign State to do all things which promote the health, peace, D
morals, education and good order of the people. Sovereignty is
difficult to define. This power of sovereignty is, however,
subject to constitutional limitations.”This power, according to
some constitutional authorities, is to the public what necessity
is to the individual. Right to tax or levy impost must be in
accordance with the provisions of the Constitution.” E

21. What then are the Constitutional limitations on the power of

the State legislatures to levy taxes or for that matter enact
legislations in the field reserved for them under the relevant entries
of List II and III of the Seventh Schedule. The first and the
foremost of these limitations appears in Article 13 of the F
Constitution of India which declares that all laws in force in the
territory of India immediately before the commencement of the
Constitution are void to the extent they are inconsistent with the
provisions of Part III dealing with the fundamental rights
guaranteed to the citizens. It forbids the States from making any G
law which takes away or abridges, any provision of Part III.
Any law made in contravention of the said rights shall to the
extent of contravention be void. There is no gain saying that the
power to enact laws has been conferred upon the Parliament
subject to the above Constitutional limitation. So also in terms of
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442 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Article 248, the residuary power to impose a tax not otherwise

mentioned in the Concurrent List or the State List has been vested
in the Parliament to the exclusion of the State legislatures, and
the States’ power to levy taxes limited to what is specifically
reserved in their favour and no more.
B 22. Article 249 similarly empowers the Parliament to legislate
with respect to a matter in the State List for national interest
provided the Council of States has declared by a resolution
supported by not less than two-thirds of the members present
and voting that it is necessary or expedient in national interest to
do so. The power is available till such time any resolution remains
C in force in terms of Article 249(2) and the proviso thereunder.
23. Article 250 is yet another provision which empowers the
Parliament to legislate with respect to any matter in the State
List when there is a proclamation of emergency. In the event of
an inconsistency between laws made by Parliament under
D Articles 249 and 250, and laws made by legislature of the States,
the law made by Parliament shall, to the extent of the
inconsistency, prevail over the law made by the State in terms of
Article 251.
24. The power of Parliament to legislate for two or more States
E by consent, in regard to matters not otherwise within the power
of the Parliament is regulated by Article 252, while Article 253
starting with a non-obstante clause empowers Parliament to make
any law for the whole country or any part of the territory of India
for implementing any treaty, agreement or convention with any
F other country or countries or any decision made at any international
conference, association or other body.”
87. Mr. Divan, however, made an earnest endeavour to further
broaden this concept of ‘limited Government’ by giving an
altogether different slant. He submitted that there are certain
G things that the States simply cannot do because the action
fundamentally alters the relationship between the citizens and the
State. In this hue, he submitted that it was impermissible for the
State to undertake the exercise of collection of bio-metric data,
including fingerprints and storing at a central depository as it puts
the State in an extremely dominant position in relation to the
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 443
[A. K. SIKRI, J.]

individual citizens. He also submitted that it will put the State in a A

position to target an individual and engage in surveillance thereby
depriving or withholding the enjoyment of his rights and
entitlements, which is totally impermissible in a country where
governance of the State of founded on the concept of ‘limited
Government’. Again, this concept of limited government is woven
B
around Article 21 of the Constitution.
88. Undoubtedly, we are in the era of liberalised democracy. In a
democratic society governed by the Constitution, there is a strong
trend towards the constitutionalisation of democratic politics, where
the actions of democratically elected Government are judged in
the light of the Constitution. In this context, judiciary assumes the C
role of protector of the Constitution and democracy, being the
ultimate arbiter in all matters involving the interpretation of the
Constitution.”
387. We may observe that the matter is examined keeping in view
the fundamental principles of constitutionalism in mind, and more D
particularly the principle that the concept of ‘limited government’ is
applicable having regard to the fact that the three limbs of the State are
to act within the framework of a written Constitution which assigns
specific powers to each of the wing of the State and this presupposes
that the sovereign power of the Parliament is circumscribed by the E
provisions of the Constitution and the legislature is supposed to Act within
the boundaries delineated by the Constitution. The constitutionalism,
which is the bedrock of rule of law, is to be necessarily adhered to by the
Parliament. Further, the power of judicial review which is accorded to
the courts can be exercised to strike down any legislation or executive
action if it is unconstitutional. F
388. When we examine this issue in the context of discussion on
various issues already dealt with, it is difficult to agree with the sweeping
proposition advanced by the petitioners that the Aadhaar project is
destructive of limited government and constitutional trust. These
submissions are premised on the architecture of the Aadhaar being G
constitutionally intrusive which threatens the autonomy of individuals
and has a tendency of creating a surveillance state. In support, the
petitioners have referred to certain provisions of the Aadhaar Act. Some
provisions which we found offending are struck down, some others
have been read down and some are tweaked with. We feel that the
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444 SUPREME COURT REPORTS [2018] 8 S.C.R.

A statutory regime that would now govern the citizenry, wards off such a
danger, if any.
MONEY BILL
Is the Aadhaar Act a validly enacted law having been passed
as a Money Bill?
B 389. Mr. Chidambaram and Mr. Datar had laid attack on the Act
on the ground that the Bill it could not have been introduced and passed
by the Parliament as Money Bill. It was argued that the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Bill, 2016 (for short the ‘Bill’) was wrongly certified as Money
C Bill under Article 110 of the Constitution of India by the Hon’ble Speaker
of the Lok Sabha, thereby, virtually excluding the Rajya Sabha from the
legislative process and depriving the Hon’ble President of his power of
return. This, according to them, is illegal and grossly violates the
constitutional provisions.
390. It was submitted that Bills are of three kinds:
D
(i) Ordinary Bills (Article 107);
(ii) Financial Bills viz. subset of Ordinary Bills (Article 117);
(iii) Money Bill viz. subset of Financial Bills (Article 110).
391. Article 110 reads as under:
E “Article 110 - Definition of “Money Bills”.-
(1) For the purposes of this Chapter, a Bill shall be deemed to be
a Money Bill if it contains only provisions dealing with all or any f
the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of
F 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;
G (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;

H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 445
[A. K. SIKRI, J.]

(e) the declaring of any expenditure to be expenditure charged on A

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; or B
(g) any matter incidental to any of the matters specified in sub-
clauses (a) to (f).
(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 C
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. D
(4) There shall be endorsed on every Money Bill when it is transmit
led 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.” E
392. It was submitted that a Money Bill may provide for matters
enumerated in Clause (a) to (f) of Article 110. Clause (g) has been
added because it may be necessary to include provisions that are only
“incidental” to any of matters specified in (a) to (f). The learned counsel
pointed out the distinguishing features of a Money Bill are as below: F
(i) It shall be introduced only on the recommendation of President
(Article 117(1)).
(ii) It shall be introduced only in the House of the People (Article
117(1), 109(1)).
(iii) A Money Bill is transmitted by the Lok Sabha to the Rajya G
Sabha. Rajya Sabha thereafter may only make recommendations and
return the Bill and not make amendments. The recommendations may
or may not be accepted by the Lok Sabha. If the Money Bill is not
returned within 14 days, it is deemed to have been passed by both the
Houses. (Article 109(2) to Article 109(5)).
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446 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (iv) Upon submission of a Money Bill to the President for his

assent, the President cannot return the Money Bill with the message
requesting that the Houses will reconsider the Bill (proviso to Article
111).
Hence, it is manifest that a Money Bill that a Money Bill is a
B special kind of Bill that has the effect of denuding the power of the
Rajya Sabha of its power to amend the Bill and depriving the President
of his power to return the bill for reconsideration. On that premise, it
was argued that the provisions of a Money Bill must be construed very
strictly and narrowly and only if a Bill falls strictly under definition of a
Money Bill (Article 110), it can be passed as a Money Bill. If the
C provisions of the Bill fall outside the strict definition of Money Bill, the
said Bill cannot be passed as a Money Bill.
393. Great emphasis was laid on the word ‘only’ appearing in
Article 110 which signified that to qualify as a Money Bill, it has to
strictly fall within one or more of the clauses of Article 110. For the
D interpretation of the word ‘only’, reference was made to the judgment in
the case of Hari Ram & Ors. v. Babu Gokul Prasad140:
“3. Section 166 of M.P. Land Revenue Code, 1954 reads as under:
“166. Any person who holds land for agricultural purposes from
a tenure holder and who is not an occupancy tenant under
E Section 169 or a protected lessee under the Berar Regulation
of Agricultural Leases Act, 1951, shall be ordinary tenant of
such land.
Explanation.— For the purposes of this section —
(i) any person who pays lease money in respect of any land in
F the form of crop share shall be deemed to hold such land;
(ii) any person who cultivates land in partnership with the tenure
holder shall not be deemed to hold such land;
(iii) any person to whom only the right to cut grass or to graze
cattle or to grow singhara (Trapa bispinosa) or to propagate or
G collect lac is granted in any land shall not be deemed to hold
such land for agricultural purposes.”
A bare perusal of the section indicates that any tenant other than
occupancy tenant if he held the land for agricultural purposes
from a tenure holder, then he became ordinary tenant by operation
140
(1991) Supp. 2 SCC 608
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 447
[A. K. SIKRI, J.]

of law. Doubt if any stood removed by the explanation which A

clarifies the class of persons who could be deemed to be covered
under a tenant other than occupancy tenant. Since it has been
found that the land was let out to appellant not only for the right to
cut grass, he could not be held to be a person who was not holding
the land for agricultural purposes. The word ‘only’ in Explanation
B
(iii) is significant. It postulates that entire land should have been
used for the purposes enumerated. If part of the land was used
for cultivation, then the land could not be deemed to have been
granted for cutting grass only. It has been found that out of 5 and
odd acres of land, the land under cultivation was 2 acres. Therefore,
the negative clause in Explanation (iii) did not apply and the C
appellant became ordinary tenant under Section 166. In 1959, M.P.
Land Revenue Code was enacted and Section 185 provided for
the persons who could be deemed to be occupancy tenants. Its
relevant part is extracted below:
“185. Occupancy tenants.— (1) Every person who at the D
coming into force of this Code holds—
(i) in the Mahakoshal Region—
(a) ***
(b) *** E
(c) any land as an ordinary tenant as defined in the Madhya
Pradesh Land Revenue Code, 1954 (2 of 1955);”
394. The learned counsel also referred to M/s. Saru Smelting
(P) Ltd. v. Commissioner of Sales Tax, Lucknow141:
“3. The contention of the respondent is that Phosphorous Bronze F
is an alloy containing not only the metals mentioned in the aforesaid
entry but Phosphorous also and as such it is not covered under
the aforesaid entry. The words “other alloy containing any of these
metals only” mean that the alloy made of these metals i.e. copper,
tin, nickel or zinc only and that alone is covered under the said G
entry. It was submitted that if any other metal or substance is
included in such an alloy, the same would not be covered under
the aforesaid entry.
xx xx xx
141
(1993) Supp. 3 SCC 97 H
448 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 5. We were referred to various dictionary meanings of the words

‘Phosphorous Bronze’ which have been noticed by the learned
Judge dealing with the case in the High Court. We are really
concerned with the interpretation of the entry. The emphasis in
the entry is — either it should be pure copper, tin, nickel or zinc
and if it is an alloy containing two or more metals, it must be an
B
alloy containing these metals only. The expression “only” is very
material for understanding the meaning of the entry. Since the
alloy in dispute contains Phosphorous, may be in a very small
quantity, it cannot fall within Entry 2(a) of the aforesaid
Notification. The appeal consequently fails and is dismissed with
C costs.”
395. In order to demonstrate as to what would be the nature and
scope of the Money Bill, reference was made to the following literature:
“RELEVANT EXCERPTS FROM ERSKINE MAY’S
“PARLIAMENTARY PRACTICE”
D
Definition of Money Bill –
Section 1(2) of the Act defines a ‘Money Bill’ as a public bill
which in the opinion of the Speaker of the House of Commons
contains only provisions dealing with all or any of the following
E subjects, namely, the imposition, repeal, remission, alteration, or
regulation of taxation; the imposition for the payment of debt or
other financial purposes of charges on the Consolidated Fund or
the national Loans Fund, or on money provided by Parliament or
the variation or repeal of any such charges; Supply; the
appropriation, receipt, custody, issue or audit of accounts of public
F money; the raising or guarantee of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or any
of them. For the purposes of this definition the expressions
‘taxation’, ‘public money’, and ‘loan’ respectively do not include
any taxation, money, or loan raised by local authorities or bodies
G for local purposes, matters which, on the other hand, are included
within the scope of Commons financial privilege.
PROCEDURE IN PASSING MONEY BILL
A ‘Money Bill’ which has been passed by the House of Commons
and sent up to the House of Lords at least one month before the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 449
[A. K. SIKRI, J.]

end of the session, but is not passed by the House of Lords without A
amendment within one month after it is so sent up, is, unless the
House of Commons direct to the contrary, to be presented for the
Royal Assent and becomes an Act of Parliament on the Royal
Assent being signified to it. A ‘Money Bil’, when it is sent up to
the House of Lords and when it is presented to Her Majesty,
B
must be endorsed with the Speaker’s certificate that it is such a
bill. Before giving this certificate the Speaker is directed to consult,
if practicable, those two members of the Panel of Chairs who are
appointed for the purpose at the beginning of each session by the
Committee of Selection.
When the Speaker has certified a bill to be a ‘Money Bill’ this is C
recorded in the Journal; and Section 3 of the Parliament Act 1911
stipulates that such certificate is conclusive for all purposes and
may not be questioned in a court of law.
No serious practical difficulty normally arises in deciding whether
a particular bill is or is not a ‘Money Bill’; and criticism has seldom D
been voiced of the Speaker’s action in giving or withholding a
certificate. A bill which contains any of the enumerated matters
and nothing besides is indisputably a ‘Money bill’. If it contains
any other matters, then, unless these are ‘subordinate matters
incidental to’ any of the enumerated matters so contained in the E
bill, the bill is not a ‘Money bill’. Furthermore, even if the main
object of a bill is to create a new charge on the Consolidated Fund
or on money provided by Parliament, the bill will not be certified if
it is apparent that the primary purpose of the new charge is not
purely financial.”
F
THE PARLIAMENTARY ACT, 1911
Chapter 13 of the Parliament Act, 1911 wherein Money Bill is
defined as under:
“(1) …
G
(2) A Money Bill means a Public Bill which in the opinion of the
Speaker of the House of Commons contains only provisions dealing
with all or any of the following subjects, namely, the imposition,
repeal, remission, alteration, or regulation of taxation; the imposition
for the payment of debt or other financial purposes of charges on
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450 SUPREME COURT REPORTS [2018] 8 S.C.R.

A the Consolidated Fund, or on money provided by Parliament, or

the variation or repeal of any such charges; supply; the
appropriation, receipt, custody, issue or audit of accounts of public
money; the raising or guarantee of any loan or the repayment
thereof; or subordinate matters incidental to those subjects or any
of them. In this subsection the expressions “taxation”, “public
B
money”, and “loan” respectively do not include any taxation, money,
or loan raised by local authorities or bodies for local purposes.
(3) There shall be endorsed on every Money Bill when it is sent
up to the House of Lords and when it is presented to His Majesty
for assent the certificate of the Speaker of the House of Commons
C signed by him that it is a Money Bill. Before giving his certificate,
the Speaker shall consult, if practicable, two members to be
appointed from the Chairmen’s Panel at the beginning of each
Session by the Committee of Selection.”
RELEVANT EXCERPTS FROM THE CONSTITUTION
D OF IRELAND
(1) A Money Bill means a Bill which contains only provisions
dealing with all or any of the following matters, namely, the
imposition, repeal, remission, alteration or regulation of taxation;
the imposition for the payment of debt or other financial purposes
E of charges on public moneys or the variation or repeal of any
such charges; supply, the appropriation, receipt, custody, issue or
audit of accounts of public money; the raising or guarantee of any
loan or the repayment thereof; matters subordinate and incidental
to these matters or any of them.
F (2) In this definition the expressions “taxation”, “public money”
and “loan” respectively do not include any taxation, money or
loan raised by local authorities or bodies for local purposes.
RELEVANT EXCERPTS FROM KAUL & SHAKDER’S
“PRACTICE AND PROCEDURE OF PARLIAMENT”,
G LOK SABHA SECRETARIAT AT INDIA
Speaker Mavalankar observed as follows:
“Prima facie, it appears to me that the words of article 110
(imposition, abolition, remission, alteration, regulation of any tax)
are sufficiently wide to make the Consolidated Bill a Money Bill.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 451
[A. K. SIKRI, J.]

A question may arise as to what is the exact significance or scope A

of the word ‘only’ and whether and how far that word goes to
modify or control the wide and general words ‘imposition, abolition,
remission, etc.’.
I think, prima facie, that the word ‘only’ is not restrictive of the
scope of the general terms. If a Bill substantially deals with the B
imposition, abolition, etc., of a tax, then the mere fact of the inclusion
in the Bill of other provisions which may be necessary for the
administration of that tax or, I may say, necessary for the
achievement of the objective of the particular Bill, cannot take
away the Bill from the category of Money Bills. One has to look
to the objective of the bill. Therefore, if the substantial provisions C
of the Bill aim at imposition, abolition, etc., of any tax then the
other provisions would be incidental and their inclusion cannot be
said to take it away from the category of a Money Bill. Unless
one construes the word ‘only’ in this way it might lead to make
article 110 a nullity. No tax can be imposed without making D
provisions for its assessment, collection, administration, reference
to courts or tribunals, etc, one can visualise only one section in a
Bill imposing the main tax and there may be fifty other sections
which may deal with the scope, method, manner, etc., of that
imposition.
E
Further, we have also to consider the provisions of sub-clause
(2) of article 110; and these provisions may be helpful to clarify
the scope of the word ‘only’, not directly but indirectly.”
396. It was further submitted that though clause (3) of Article 110
stipulates that decision of the Speaker on whether a Bill is a Money Bill F
or not is final, that did not mean that it was not subject to the judicial
scrutiny and, therefore, in a given case, the Court was empowered to
decide as to whether decision of the Speaker was constitutionally correct.
In respect of Bill in question, it was argued that though Section 7 states
that subsidies, benefits and services shall be provided from Consolidated
Fund of India which was an attempt to give it a colour of Money Bill, G
some of the other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57
of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of
the Aadhaar Act) do not fall under any of the clauses of Article 110 of
the Constitution. Therefore, some provisions which were other than
those covered by Money Bill and, therefore, introduction of the Bill as H
452 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Money Bill was clearly inappropriate. It was also argued that, in this
scenario, entire Act was bound to fail as there is no provision for severing
clauses in Indian Constitution, unlike Section 55 of the Australian
Constitution. Insofar as justiciability of the Speaker’s decision is
concerned, following judgments were referred to:
B (i) Sub-Committee on Judicial Accountability v. Union of India
& Ors.142
(ii) S.R. Bommai & Ors. v. Union of India & Ors.143
(iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.144

C (iv) Ramdas Athawale v. Union of India & Ors.145

(v) Kihoto Hollohan v. Zachillhu & Ors.146
397. It was emphasised that the creation and composition of the
Rajya Sabha (Upper House) is an indicator of, and is essential to,
constitutional federalism. It is a part of basic structure of the Constitution
D as held in Kuldip Nayar & Ors. v. Union of India & Ors. 147 .
Therefore, Rajya Sabha could not have been by-passed while passing
the legislation in question and doing away with this process and also
right of the President to return the Bill has rendered the statute
unconstitutional.
E 398. The learned Attorney General as well as Mr. Dwivedi and
some other counsel appearing for respondents refuted the aforesaid
submissions in a strongest manner possible. It was argued that the Bill
was rightly characterised as a Money Bill and introduced under Article
110 of the Constitution. According to them, the heart of the Aadhaar
Act is Section 7. It is not the creation of Aadhaar number per se which
F
is the core of the Act, rather, that is only a means to identify the correct
beneficiary and ensure “targeted delivery of subsidies, benefits and
services”, the expenditure for which is incurred from the Consolidated
Fund of India. A conjoint reading of the preamble to the Act along with
Section 7 clearly discloses the legislative intent and the object of the Act,
G which is to ensure that subsidy, benefit or service for which expenditure
142
(1991) 4 SCC 699
143
(1994) 3 SCC 1
144
(2007) 3 SCC 184
145
(2010) 4 SCC 1
146
(1992) Supp. 2 SCC 651
147
(2006) 7 SCC 1
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 453
[A. K. SIKRI, J.]

is incurred from or the receipt therefrom forms part of, the Consolidated A
Fund of India should be targeted to reach the intended beneficiary. It
was argued, without prejudice to the above, that the decision of the
Speaker incorporated into a certificate sent to the President is final and
cannot be the subject matter of judicial review. To support the aforesaid
proposition, reference was made to the judgment in the case of Mohd.
B
Saeed Siddiqui v. State of Uttar Pradesh & Anr.148 wherein the Court
held as under:
“7. Leave granted in the special leave petition. This appeal is
directed against the order dated 27-8-2012 passed by the Division
Bench of the High Court of Judicature of Allahabad in Mukul
Upadhyay v. N.K. Mehrotra [Civil Misc. Writ Petition No. 24905 C
of 2012 (Writ-C 24905 of 2012), order dated 27-8-2012 (All)]
whereby the High Court, while allowing the amendment application
to the writ petition and holding the writ petition to be maintainable,
directed to list the petition on 27-9-2012 for hearing on merits. By
way of the said amendment application, the writ petitioner sought D
to add two grounds in the writ petition viz. the Amendment Act is
violative of the provisions of the Constitution of India and the
same was wrongly introduced as a Money Bill in clear disregard
to the provisions of Article 199 of the Constitution of India.
Accordingly, it was prayed to issue a writ, order or direction in the
nature of mandamus declaring the Amendment Act as ultra vires E
the provisions of the Constitution of India.
xx xx xx

12. It was further submitted by Mr Venugopal that the Amendment F

Act was not even passed by the State Legislature in accordance
with the provisions of the Constitution of India and is, thus, a mere
scrap of paper in the eye of the law. The Bill in question was
presented as a Money Bill when, on the face of it, it could never
be called as a Money Bill as defined in Articles 199(1) and 199(2) G
of the Constitution of India. Since the procedure for an ordinary
Bill was not followed and the assent of the Governor was obtained
to an inchoate and incomplete Bill which had not even gone through
the mandatory requirements under the Constitution of India, the
148
(2014) 11 SCC 415
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454 SUPREME COURT REPORTS [2018] 8 S.C.R.

A entire action was unconstitutional and violative of Article 200 of

the Constitution of India.
xx xx xx
31. The main apprehension of the petitioner is that the Bill that
led to the enactment of the Amendment Act was passed as a
B Money Bill in violation of Articles 197 and 198 of the Constitution
of India which should have been passed by both the Houses viz.
U.P. Legislative Assembly and U.P. Legislative Council and was
wrongly passed only by the U.P. Legislative Assembly. During
the course of hearing, Mr Desai, learned Senior Counsel appearing
C for the State of U.P., placed the original records pertaining to the
proceedings of the Legislative Assembly, decision of the Speaker
as well as the Governor, which we are going to discuss in the
latter part of our judgment.
xx xx xx
D 34. The above provisions make it clear that the finality of the
decision of the Speaker and the proceedings of the State Legislature
being important privilege of the State Legislature viz. freedom of
speech, debate and proceedings are not to be inquired by the courts.
The “proceeding of the legislature” includes everything said or
E done in either House in the transaction of the parliamentary
business, which in the present case is enactment of the Amendment
Act. Further, Article 212 precludes the courts from interfering
with the presentation of a Bill for assent to the Governor on the
ground of non-compliance with the procedure for passing Bills, or
from otherwise questioning the Bills passed by the House. To put
F it clear, proceedings inside the legislature cannot be called into
question on the ground that they have not been carried on in
accordance with the Rules of Business. This is also evident from
Article 194 which speaks about the powers, privileges of the
Houses of the Legislature and of the members and committees
G thereof.
35. We have already quoted Article 199. In terms of Article 199(3),
the decision of the Speaker of the Legislative Assembly that the
Bill in question was a Money Bill is final and the said decision
cannot be disputed nor can the procedure of the State Legislature
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 455
[A. K. SIKRI, J.]

be questioned by virtue of Article 212. We are conscious of the A

fact that in the decision of this Court in Raja Ram Pal v. Lok
Sabha [(2007) 3 SCC 184] , it has been held that the proceedings
which may be tainted on account of substantive or gross irregularity
or unconstitutionality are not protected from judicial scrutiny.
36. Even if it is established that there was some infirmity in the B
procedure in the enactment of the Amendment Act, in terms of
Article 255 of the Constitution the matters of procedure do not
render invalid an Act to which assent has been given by the
President or the Governor, as the case may be.
xx xx xx C
43. As discussed above, the decision of the Speaker of the
Legislative Assembly that the Bill in question was a Money Bill is
final and the said decision cannot be disputed nor can the procedure
of the State Legislature be questioned by virtue of Article 212.
Further, as noted earlier, Article 252 also shows that under the D
Constitution the matters of procedure do not render invalid an Act
to which assent has been given by the President or the Governor,
as the case may be. Inasmuch as the Bill in question was a Money
Bill, the contrary contention by the petitioner against the passing
of the said Bill by the Legislative Assembly alone is unacceptable.”
E
399. It was submitted that the challenge on identical grounds was,
thus, repelled in the aforesaid case wherein validity of legislative
enactment of a State in question, on the same ground, namely, it could
not called Money Bill as defined in Article 199 of the Constitution, which
was pari materia with Article 110 of the Constitution qua the Parliament.
Judgment in the case of Yogendra Kumar Jaiswal & Ors. v. State of F
Bihar & Ors.149 was also referred to wherein the Court was concerned
with Orissa Special Courts Act, 2006 which was also passed as Money
Bill and was challenged as violative of Article 199 of the Constitution. It
was argued that the Court held in this case that decision of the Speaker
that the Bill in question is a Money Bill is final and such a decision G
cannot be disputed nor can the procedure of the state legislature can be
questioned by virtue of Article 212 of the Constitution. The learned
Attorney General specifically read out the following portion from the
said judgment:
149
(2016) 3 SCC 183
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456 SUPREME COURT REPORTS [2018] 8 S.C.R.

A “42. In this regard, we may profitably refer to the authority in

Mohd. Saeed Siddiqui v. State of U.P. [Mohd. Saeed Siddiqui
v. State of U.P., (2014) 11 SCC 415], wherein a three-Judge Bench
while dealing with such a challenge, held that Article 212 precludes
the courts from interfering with the presentation of a Bill for assent
to the Governor on the ground of non-compliance with the
B
procedure for passing Bills, or from otherwise questioning the
Bills passed by the House, for proceedings inside the legislature
cannot be called into question on the ground that they have not
been carried on in accordance with the Rules of Business.
Thereafter, the Court referring to Article 199(3) ruled that the
C decision of the Speaker of the Legislative Assembly that the Bill
in question was a Money Bill is final and the said decision cannot
be disputed nor can the procedure of the State Legislature be
questioned by virtue of Article 212. The Court took note of the
decision in Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007)
3 SCC 184] wherein it has been held that the proceedings which
D
may be tainted on account of substantive or gross irregularity or
unconstitutionality are not protected from judicial scrutiny.
Eventually, the Court repelled the challenge.
43. In our considered opinion, the authorities cited by the learned
counsel for the appellants do not render much assistance, for the
E introduction of a Bill, as has been held in Mohd. Saeed Siddiqui
[Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] ,
comes within the concept of “irregularity” and it does come within
the realm of substantiality. What has been held in Special
Reference No. 1 of 1964 [Powers, Privileges and Immunities
of State Legislatures, In re, Special Reference No. 1 of 1964,
F
AIR 1965 SC 745] has to be appositely understood. The factual
matrix therein was totally different than the case at hand as we
find that the present controversy is wholly covered by the
pronouncement in Mohd. Saeed Siddiqui [Mohd. Saeed
Siddiqui v. State of U.P., (2014) 11 SCC 415] and hence, we
G unhesitatingly hold that there is no merit in the submission so
assiduously urged by the learned counsel for the appellants.”
400. Reliance was also placed on three judgments of Constitution
Bench of this Court150. The learned Attorney General also submitted
150
Mangalore Ganesh Beedi Works v. State of Mysore & Anr., 1963 Supp (1) SCR 275;
Ramdas Athawale v. Union of India & Ors., (2010) 4 SCC 1, and; M.S.M. Sharma v.
H Dr. Shree Krishna Sinha & Ors., AIR 1960 SC 1186
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 457
[A. K. SIKRI, J.]

that even if it is presumed that there is illegality of procedure in the A

conduct of business in the Parliament, such parliamentary proceedings
were immune from challenge. Attention of the Court was also drawn to
Article 122, which prohibits any proceedings of Parliament being called
in question on the ground of “any alleged irregularity of procedure”.
It was submitted that the decision and certification of the Speaker being
B
a matter of procedure is included in the Chapter under the heads
“Legislative Procedure” being Articles 107 to 111, “Procedure in Financial
Matters” being Articles 112 to 117 and “Procedure Generally” being
Article 118 to 122 placing beyond doubt that separation of powers is
embedded in these provisions clearly excluding judicial review in matters
of procedure. Submission was that if this is clearly a Money Bill, being C
placed beyond challenge in a Court of Law, then to term it as a Financial
Bill as contended by the petitioners would be wholly unjustified. Dilating
the aforesaid proposition, it was pointed out that in the Draft Constitution
prepared by the drafting committee, Article 101 provided for immunity
of Parliamentary proceedings from judicial intervention on ‘alleged
D
irregularity of procedure’. This article finally got renumbered as Article
122 in the Constitution of India. During the Constituent Assembly debates,
Shri H.V. Kamath suggested an amendment to draft Article 101 to clarify
that the validity of any Parliamentary proceedings shall not be called in
question in any court. Accordingly, he suggested that the words ‘called
in question’ be replaced with ‘called in question in any court’. Refuting E
this suggested amendment, Dr. B.R. Ambedkar categorically stated:
“Sir, with regard to the amendment of Mr. Kamath, I do not think
it is necessary, because where can the proceedings of Parliament
be questioned in a legal manner except in a court? Therefore the
only place where the proceedings of Parliament can be questioned F
in a le-gal manner and legal sanction obtained is the Court.
Therefore it is unnecessary to mention the words which Mr.
Kamath wants in his amendment. For the reason I have explained,
the only forum there the proceedings can be questioned in a
legal manner and legal relief obtained either against the
President or the Speaker or any officer or Member, being the G
Court, it is unnecessary to specify the forum. Mr. Kamath will
see that the marginal note makes it clear.”
401. Support of the judgment rendered by Patna High Court in
Patna Zilla Truck Owners Association & Ors. v. State of Bihar &
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458 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Ors.151 was also taken, which has been approved by the Constitution
Bench judgment of this Court in State of Punjab v. Sat Pal Dang &
Ors.152. It was also argued that the legal position was similar in other
Parliamentary democracies like Australia and Canada.
402. In any case, argued the learned Attorney General and Mr.
B Dwivedi, the Bill was rightly introduced as Money Bill as it merited such
a description in law as well. To buttress this submission, doctrine of pith
and substance was invoked as a guiding test. It was argued that Section
7 which was the heart and soul of the Aadhaar Act fulfilled this
requirement as the subsidies, benefits and services, the expenditure of
which is incurred from the Consolidated Fund of India. Therefore,
C conditions laid down in Article 110 were fully satisfied. Following
judgments153 explaining the doctrine of pith and substance were pressed
into substance. It was submitted that undoubtedly in pith and substance,
the object of the Aadhaar Act is to identify the correct beneficiaries and
ensure the “targeted delivery of subsidies, benefits and services”, the
D expenditure for which is incurred from the Consolidated Fund of India.
The creation of the Aadhaar number and authentication facility are in
furtherance of the object of the Aadhaar Act, which is permissible under
Article 110(g). It was also argued that Section 57, which has been
attacked as being untraceable to any of the sub-clauses of (a) to (f) of
Article 110 cannot be looked at in isolation. This Bill in its pith and
E substance should pass the test of being a Money Bill and not isolated
provisions. On the contrary, Section 57 of the Act is also incidental to
the object of the Act and creates a limitation upon use of Aadhaar by
private parties wherein even though nothing prevents them from using
Aadhaar for other purposes, the same has been subjected to the
F procedure and obligations of Section 8, which requires, inter alia, informed
consent of the Aadhaar number holder, purpose limitation, i.e. the identity
information will be used only for submission to CIDR for authentication
and the private entity must provide alternatives to submission of such
identity information, which, in other words, means that private parties
cannot insist upon Aadhaar and make Aadhaar mandatory, unless required
G by law. Therefore, Section 57 is a limitation imposed under the Aadhaar
151
AIR 1963 Pat 16
152
(1969) 1 SCR 478
153
A.S. Krishna v. State of Madras, (1957) SCR 399; Union of India & Ors. v. Shah
Goverdhan L. Kabra Teachers’ College, (2002) 8 SCC 228, and; P.N. Krishna Lal &
Ors. v. Government of Kerala & Anr., 1995 Supp (2) SCC 187
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 459
[A. K. SIKRI, J.]

Act on the use of Aadhaar number by private parties which is purely A

incidental to the object of the Act and would squarely fall within Article
110(g) of the Constitution.
403. At the outset, we would like to recognise the importance of
Rajya Sabha (Upper House) in a bicameral system of the Parliament.
The significance and relevance of the Upper House has been succinctly B
exemplified by this Court in Kuldip Nayar’s case in the following words:
“74. The growth of “bicameralism” in parliamentary forms of
Government has been functionally associated with the need for
effective federal structures. This nexus between the role of
“Second Chambers” or Upper Houses of Parliament and better C
coordination between the Central Government and those of the
constituent units, was perhaps first laid down in definite terms
with the Constitution of the United States of America, which was
ratified by the thirteen original States of the Union in the year
1787. The Upper House of the Congress of USA, known as the
Senate, was theoretically modelled on the House of Lords in the D
British Parliament, but was totally different from the latter with
respect to its composition and powers.
75. Since then, many nations have adopted a bicameral form of
Central Legislature, even though some of them are not federations.
On account of colonial rule, these British institutions of E
parliamentary governance were also embodied in the British North
America Act, 1867 by which the Dominion of Canada came into
existence and the Constitution of India, 1950. In Canada,
Parliament consists of the House of Commons and the Senate
(the Upper House). Likewise, the Parliament of the Union of F
India consists of the Lok Sabha (House of the People) and the
Rajya Sabha (Council of States, which is the Upper House). In
terms of their functions as agencies of representative democracies,
the Lower Houses in the legislatures of India, USA and Canada,
namely, the Lok Sabha, the House of Representatives and the
House of Commons broadly follow the same system of G
composition. As of now, Members of the Lower Houses are elected
from pre-designated constituencies through universal adult
suffrage. The demarcation of these constituencies is in accordance
with distribution of population, so as to accord equity in the value
of each vote throughout the territory of the country. However, H
460 SUPREME COURT REPORTS [2018] 8 S.C.R.

A with the existence of constituent States of varying areas and

populations, the representation accorded to these States in the
Lower House becomes highly unequal. Hence, the composition
of the Upper House has become an indicator of federalism, so as
to more adequately reflect the interests of the constituent States
and ensure a mechanism of checks and balances against the
B
exercise of power by Central authorities that might affect the
interests of the constituent States.
xx xx xx
79. The genesis of the Indian Rajya Sabha on the other hand
C benefited from the constitutional history of several nations which
allowed the Constituent Assembly to examine the federal functions
of an Upper House. However, “bicameralism” had been
introduced to the provincial legislatures under the British rule in
1921. The Government of India Act, 1935 also created an Upper
House in the federal legislature, whose members were to be
D elected by the members of provincial legislatures and in case of
Princely States to be nominated by the rulers of such territories.
However, on account of the realities faced by the young Indian
Union, a Council of States (the Rajya Sabha) in the Union
Parliament was seen as an essential requirement for a federal
E order. Besides the former British provinces, there were vast areas
of Princely States that had to be administered under the Union.
Furthermore, the diversity in economic and cultural factors
between regions also posed a challenge for the newly-independent
country. Hence, the Upper House was instituted by the
Constitution-framers which would substantially consist of members
F elected by the State Legislatures and have a fixed number of
nominated members representing non-political fields. However,
the distribution of representation between the States in the Rajya
Sabha is neither equal nor entirely based on population distribution.
A basic formula is used to assign relatively more weightage to
G smaller States but larger States are accorded weightage
regressively for additional population. Hence the Rajya Sabha
incorporates unequal representation for States but with
proportionally more representation given to smaller States. The
theory behind such allocation of seats is to safeguard the interests
of the smaller States but at the same time giving adequate
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 461
[A. K. SIKRI, J.]

representation to the larger States so that the will of the A

representatives of a minority of the electorate does not prevail
over that of a majority.
80. In India, Article 80 of the Constitution of India prescribes the
composition of the Rajya Sabha. The maximum strength of the
House is 250 members, out of which up to 238 members are the B
elected representatives of the States and the Union Territories
[Article 80(1)(b)], and 12 members are nominated by the President
as representatives of non-political fields like literature, science,
art and social services [Articles 80(1)(a) and 80(3)]. The members
from the States are elected by the elected members of the
respective State Legislative Assemblies as per the system of C
proportional representation by means of the single transferable
vote [Article 80(4)]. The manner of election for representatives
from the Union Territories has been left to prescription by
Parliament [Article 80(5)]. The allocation of seats for the various
States and Union Territories of the Indian Union is enumerated in D
the Fourth Schedule to the Constitution, which is read with Articles
4(1) and 80(2). This allocation has obviously varied with the
admission and reorganisation of States.”
404. The Rajya Sabha, therefore, becomes an important institution
signifying constitutional fedaralism. It is precisely for this reason that to E
enact any statute, the Bill has to be passed by both the Houses, namely,
Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The
only exception to the aforesaid Parliamentary norm is Article 110 of the
Constitution of India. Having regard to this overall scheme of
bicameralism enshrined in our Constitution, strict interpretation has to be
accorded to Article 110. Keeping in view these principles, we have F
considered the arguments advanced by both the sides.
405. We would also like to observe at this stage that insofar as
submission of the respondents about the justiciability of the decision of
the Speaker of the Lok Sabha is concerned, we are unable to subscribe
to such a contention. Judicial review would be admissible under certain G
circumstances having regard to the law laid down by this Court in various
judgments which have been cited by Mr. P. Chidambaran, learned senior
counsel appearing for the petitioners, and taken note of in paragraph 396.

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462 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 406. From the submissions of the learned counsel for the parties
as taken note of above, it is clear that the petitioners accept that Section
7 of the Aadhaar Act has the elements of ‘Money Bill’. The attack is on
the premise that some other provisions, namely, clauses 23(2)(h), 54(2)(m)
and 57 of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and
57 of the Aadhaar Act) do not fall under any of the clauses of Article
B
110 of the Constitution and, therefore, Bill was not limited to only those
subjects mentioned in Article 110. Insofar as Section 7 is concerned, it
makes receipt of subsidy, benefit or service subject to establishing identity
by the process of authentication under Aadhaar or furnish proof of
Aadhaar etc. It is also very clearly declared in this provision that the
C expenditure incurred in respect of such a subsidy, benefit or service
would be from the Consolidated Fund of India. It is also accepted by the
petitioners that Section 7 is the main provision of the Act. In fact,
Introduction to the Act as well as the Statement of Objects and Reasons
very categorically record that the main purpose of Aadhaar Act is to
ensure that such subsidies, benefits and services reach those categories
D
of persons, for whom they are actually meant. Sections 2(f), (w) and
(x) of the Aadhaar Act define benefit, service and subsidy respectively.
These provisions read as under:
“2(f) “benefit” means any advantage, gift, reward, relief, or
payment, in cash or kind, provided to an individual or a group of
E individuals and includes such other benefits as may be notified by
the Central Government;
2(w) “service” means any provision, facility, utility or any other
assistance provided in any form to an individual or a group of
individuals and includes such other services as may be notified by
F the Central Government;
2(x) “subsidy” means any form of aid, support, grant, subvention,
or appropriation, in cash or kind, to an individual or a group of
individuals and includes such other subsidies as may be notified
by the Central Government.”
G
407. As all these three kinds of welfare measures are sought to
be extended to the marginalised section of society, a collective reading
thereof would show that the purpose is to expand the coverage of all
kinds of aid, support, grant, advantage, relief provisions, facility, utility or
assistance which may be extended with the support of the Consolidated
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 463
[A. K. SIKRI, J.]

Fund of India with the objective of targeted delivery. It is also clear that A
various schemes which can be contemplated by the aforesaid provisions,
relate to vulnerable and weaker section of the society. Whether the
social justice scheme would involve a subsidy or a benefit or a service is
merely a matter of the nature and extent of assistance and would depend
upon the economic capacity of the State. Even where the state subsidizes
B
in part, whether in cash or kind, the objective of emancipation of the
poor remains the goal.
408. The respondents are right in their submission that the
expression subsidy, benefit or service ought to be understood in the context
of targeted delivery to poorer and weaker sections of society. Its
connotation ought not to be determined in the abstract. For as an C
abstraction one can visualize a subsidy being extended by Parliament to
the King; by Government to the Corporations or Banks; etc. The nature
of subsidy or benefit would not be the same when extended to the poor
and downtrodden for producing those conditions without which they
cannot live a life with dignity. That is the main function behind the D
Aadhaar Act and for this purpose, enrolment for Aadhaar number is
prescribed in Chapter II which covers Sections 3 to 6. Residents are,
thus, held entitled to obtain Aadhaar number. We may record here that
such an enrolment is of voluntary nature. However, it becomes
compulsory for those who seeks to receive any subsidy, benefit or service
under the welfare scheme of the Government expenditure whereof is to E
be met from the Consolidated Fund of India. It follows that authentication
under Section 7 would be required as a condition for receipt of a subsidy,
benefit or service only when such a subsidy, benefit or service is taken
care of by Consolidated Fund of India. Therefore, Section 7 is the core
provision of the Aadhaar Act and this provision satisfies the conditions F
of Article 110 of the Constitution. Upto this stage, there is no quarrel
between the parties.
409. In this context, let us examine provisions of Sections 23(2)(h),
54(2)(m) and 57 of the Aadhaar Act. Insofar as Section 23 is concerned,
it deals with powers and functions of the Authority. Sub-section (1) thereof G
says that the Authority shall develop the policy, procedure and systems
for issuing Aadhaar numbers to individuals and perform authentication
thereof under this Act. As mentioned above, under Section 3 of the
Aadhaar Act, Aadhaar number is to be issued and authentication is
performed under Section 8 of the Aadhaar Act. Sub-section (2) stipulates
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464 SUPREME COURT REPORTS [2018] 8 S.C.R.

A certain specified powers and functions which the Authority may perform
and sub-section (h) thereof reads as under:
“23(2)(h) specifying the manner of use of Aadhaar numbers for
the purposes of providing or availing of various subsidies, benefits,
services and other purposes for which Aadhaar numbers may be
B used.”
410. This provision, thus, enables the Authority to specify the
manner of use of Aadhaar with specific purpose in mind, namely, for
providing or availing of various subsidies, benefits and services. These
are relatable to Section 7. However, it uses the expression ‘other
C purposes’ as well. The expression ‘other purposes’ can be read ejusdem
generis which would have its relation to subsidies, benefits and services
as mentioned in Section 7 and it can be confined only to that purpose i.e.
scheme of targeted delivery for giving any grant, relief etc. when it is
chargeable to Consolidated Fund of India. Therefore, this provision,
according to us, can be read as incidental to the main provision and
D would be covered by Article 110(g) of the Constitution. Section 54
confers power upon the Authority to make regulations consistent with
the Act and rules made thereunder, for carrying out the provisions of the
Act. Clause (m) of sub-section (2) of Section 54 relates to Section
23(2)(h) as can be seen from its language.
E “54(2)(m) the manner of use of Aadhaar numbers for the purposes
of providing or availing of various subsidies, benefits, services
and other purposes for which Aadhaar numbers may be used under
clause (h) of sub-section (2) of section 23.”
411. The interpretation which we have given to Section 23(2)(h)
F would apply here as well and, therefore, we do not find any problem
with this provision also. Coming to Section 57 of the Aadhaar Act, it
mentions that Aadhaar Act would not prevent use of Aadhaar number
for other purposes under the law. It is only an enabling provision as it
permits the use of Aadhaar number for other purposes as well. This
G provision is to be viewed in the backdrop that Section 7 is the core
provision. We have already held that it has substantial nexus with the
appropriation of funds from the Consolidated Fund of India and is directly
connected with Article 110 of the Constitution. To facilitate this, UIDAI
is established as Authority under the Act which performs various
functions including that of a regulator needing funds for staff salary and
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 465
[A. K. SIKRI, J.]

it’s own expenses. Respondents have rights remarked that the Authority A
is the performer in chief, the predominant dramatis personae. It appoints
Registrars, enrollers, REs and ASAs; it lays down device and software
specifications, and develops softwares too; it enrols; it de-duplicates; it
establishes CIDR and manages it; it authenticates; it inspects; it
prosecutes; it imposes disincentives; etc. And all this it does based on
B
funds obtained by appropriations from Consolidated Fund of India
(Section 24).
412. When we examine the provision of Section 57 in the aforesaid
backdrop, as stated above, it only enables holder of Aadhaar number to
use the said number for other purposes as well. That would not take
away or dilute the sheen of clause 7 (now Section 7) for which purposes C
the Bill was introduced as Money Bill. In any case, a part of Section 57
has already declared unconstitutional whereby even a body corporate in
private sector or person may seek authentication from the Authority for
establishing the identity of an individual.
For all the aforesaid reasons, we are of the opinion that Bill was D
rightly introduced as Money Bill. Accordingly, it is not necessary for us
to deal with other contentions of the petitioners, namely, whether
certification by the Speaker about the Bill being Money Bill is subject to
judicial review or not, whether a provision which does not relate to Money
Bill is severable or not. We reiterate that main provision is a part of E
Money Bill and other are only incidental and, therefore, covered by clause
(g) of Article 110 of the Constitution.
Section 139AA of the Income Tax Act, 1961:
413. The Division Bench of this Court in Binoy Viswam has already
upheld the validity of Section 139AA of the Income Tax Act, 1961 by F
repelling the contention predicated on Articles 14 and 19 of the
Constitution of India. No doubt, in the said judgment, the Court held that
insofar as scope of judicial review of legislative act is concerned, it is
available on two grounds, namely:
(i) The Act is not within the competence of the legislature which G
passed the law, and/or
(ii) It is in contravention of any fundamental rights stipulated in
Part III of the Constitution or any other rights/provisions of the
Constitution.
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466 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 414. We have already acknowledged the existence of third ground

as pointed out in Shayara Bano case, namely, ‘manifest arbitrariness’.
An Act which is manifestly arbitrary would be unreasonable and contrary
to rule of law and, therefore, violative of Article 14 of the Constitution.
Even when we consider the provisions of Section 139AA of the Income
Tax Act, 1961 from this point of view, it cannot be said that the provision
B
suffers from the vice of manifest arbitrariness. On the contrary, in Binoy
Viswam itself, the benevolent purpose for inserting such a provision as a
bona fide move has been highlighted. Therefore, the provision needs
this test as well. In this behalf, the Court observed:
“101. The varying needs of different classes or sections of people
C require differential and separate treatment. The legislature is
required to deal with diverse problems arising out of an infinite
variety of human relations. It must, therefore, necessarily have
the power of making laws to attain particular objects and, for that
purpose, of distinguishing, selecting and classifying persons and
D things upon which its laws are to operate. The principle of equality
of law, thus, means not that the same law should apply to everyone
but that a law should deal alike with all in one class; that there
should be an equality of treatment under equal circumstances. It
means that equals should not be treated unlike and unlikes should
not be treated alike. Likes should be treated alike.”
E
415. Since the issue as to whether right to privacy is a facet of
fundamental rights or not was pending before the Constitution Bench,
the challenge to Section 139AA was not examined in the context of
privacy rights, specifically Article 21 of the Constitution though this aspect
was argued. The Division Bench observed in this behalf, as under:
F
“136. Subject to the aforesaid, these writ petitions are disposed
of in the following manner:
136.1. We hold that Parliament was fully competent to enact
Section 139-AA of the Act and its authority to make this law was
G not diluted by the orders of this Court.
136.2. We do not find any conflict between the provisions of the
Aadhaar Act and Section 139-AA of the Income Tax Act inasmuch
as when interpreted harmoniously, they operate in distinct fields.

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 467
[A. K. SIKRI, J.]

136.3. Section 139-AA of the Act is not discriminatory nor it A

offends equality clause enshrined in Article 14 of the Constitution.
136.4. Section 139-AA is also not violative of Article 19(1)(g) of
the Constitution insofar as it mandates giving of Aadhaar enrolment
number for applying for PAN cards, in the income tax returns or
notified Aadhaar enrolment number to the designated authorities. B
Further, the proviso to sub-section (2) thereof has to be read down
to mean that it would operate only prospectively.
136.5. The validity of the provision upheld in the aforesaid manner
is subject to passing the muster of Article 21 of the Constitution,
which is the issue before the Constitution Bench in Writ Petition C
(Civil) No. 494 of 2012 and other connected matters. Till then,
there shall remain a partial stay on the operation of the proviso to
sub-section (2) of Section 139-AA of the Act, as described above.
No costs.”
416. The nine Judge Bench has already, since then, answered the D
reference by holding that right to privacy is a fundamental right. Having
regard to that, validity of Section 139AA of the Act needs to be tested
on this ground.
417. As already explained above, the Constitution Bench has held
that in K.S. Puttaswamy though privacy is a fundamental right inter E
alia traceable to the right to liberty enshrined in Article 21 of the
Constitution, it is not an absolute right but subject to limitations. The
Court also laid down the triple test which need to be satisfied for judging
the permissible limits for invasion of privacy while testing the validity of
any legislation. These are:
F
(a) The existence of a law.
(b) A “legitimate State interest”; and
(c) Such law should pass the “test of proportionality”.
418. In the present case, there is no dispute that first requirement
stands satisfied as Section 139AA is a statutory provision and, therefore, G
there is a backing of law. Mr. Tushar Mehta, learned ASG had argued
that not only other two requirements are also satisfied, rather these have
been specifically dealt with by the Division Bench in Binoy Viswam
inasmuch as these aspects were eluded to, consider, examined and the
Court recorded its findings on these aspects. We find force in this H
468 SUPREME COURT REPORTS [2018] 8 S.C.R.

A submission of Mr. Mehta. Insofar as requirement of ‘legitimate State

interest’ is concerned, he pointed out that though Nariman, J. provided
for a lenient test, namely, ‘larger public interest’ as against ‘legitimate
State interest’, the provision satisfies both the tests. We agree with his
submission, as Section 139AA of the Income Tax Act, 1961 seeks to
safeguard the following interest:
B
“To prevent income tax evasion by requiring, through an
amendment to the Income Tax Act, that the Aadhaar number be
linked with the PAN.”
419. The mandatory requirement of quoting/producing PAN
C number is given in Rule 114 and the Form 49A. While mandating that
“every person”, (the term “person” as defined under Section 2(31) of
the Act), shall apply for and get a PAN, the legislature also provided for
the requirement so as to how such number will be given to every “person”
in Rule 114 of the Income Tax Rules, the relevant part of which is Rule
114(1). While complying with the mandatory requirement (which have
D been in existence since 1989) and that for all “persons”, many facts
were required to be disclosed and such disclosure was/is in public interest
including demographic details and biometrics i.e. left thumb impression/
signature.
420. The Parliament, considering the “legitimate State interest”
E as well as the “larger public interest” has now introduced Section 139AA
which is only an extension of Section 139A which requires linking of
PAN number with Aadhaar number which is issued under the Act for
the purpose of eliminating duplicate PANs from the system with the
help of a robust technology solution. Therefore, those who have PAN
F number and have already provided the information required to get PAN
number cannot claim to have any legitimate expectation of withholding
any data required for Aadhaar under the ground of “privacy”.
421. The respondents have demonstrated with empirical data, in
the common additional affidavit of respondent Nos. 1 and 3 the existence
G of the “legitimate State interest” and “larger public interest”. Being a
unique identifier, the problem of bogus or duplicate PANs can be dealt
with in a more systematic and full-proof manner (though, in the context
of Articles 14 and 19 of the Constitution, but at the same time, relevant
from the perspective of legitimate State interest also). Discussion on
this aspect, in Binoy Viswam, proceeds as under:
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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 469
[A. K. SIKRI, J.]

“60.2. PAN is the key or identifier of all computerised records A

relating to the taxpayer. The requirement for obtaining of PAN is
mandated through Section 139-A of the Act. The procedure for
application for PAN is prescribed in Rule 114 of the Rules. The
forms prescribed for PAN application are Forms 49-A and 49-
AA for Indian and foreign citizens/entities. Quoting of PAN has
B
been mandated for certain transactions above specified threshold
value in Rule 114-B of the Rules.
60.3. For achieving the objective of one PAN to one assessee, it
is required to maintain uniqueness of PAN. The uniqueness of
PAN is achieved by conducting a de-duplication check on all
already existing allotted PAN against the data furnished by new C
applicant. Under the existing system of PAN only demographic
data is captured. De-duplication process is carried out using a
phonetic algorithm whereby a Phonetic PAN (PPAN) is created
in respect of each applicant using the data of applicant’s name,
father’s name, date of birth, gender and status. By comparison of D
newly generated PPAN with existing set of PPANs of all
assessees duplicate check is carried out and it is ensured that
same person does not acquire multiple PANs or one PAN is not
allotted to multiple persons. Due to prevalence of common names
and large number of PAN holders, the demographic way of de-
duplication is not foolproof. Many instances are found where E
multiple PANs have been allotted to one person or one PAN has
been allotted to multiple persons despite the application of
abovementioned de-duplication process. While allotment of multiple
PANs to one person has the risk of diversion of income of person
into several PANs resulting in evasion of tax, the allotment of F
same PAN to multiple persons results in wrong aggregation and
assessment of incomes of several persons as one taxable entity
represented by single PAN.
60.4. Presently verification of original documents in only 0.2%
cases (200 out of 1,00,000 PAN applications) is done on a random G
basis which is quite less. In the case of Aadhaar, 100% verification
is possible due to availability of online Aadhaar authentication
service provided by the UIDAI. Aadhaar seeding in PAN database
will make PAN allotment process more robust.

H
470 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 60.5. Seeding of Aadhaar number into PAN database will allow a

robust way of de-duplication as Aadhaar number is de-duplicated
using biometric attributes of fingerprints and iris images. The
instance of a duplicate Aadhaar is almost non-existent. Further
seeding of Aadhaar will allow the Income Tax Department to
weed out any undetected duplicate PANs. It will also facilitate
B
resolution of cases of one PAN allotted to multiple persons.
xx xx xx
104. Insofar as the impugned provision is concerned, Mr Datar
had conceded that first test that of reasonable classification had
C been satisfied as he conceded that individual assessees form a
separate class and the impugned provision which targeted only
individual assessees would not be discriminatory on this ground.
His whole emphasis was that Section 139-AA of the Act did not
satisfy the second limb of the twin tests of classification as,
according to him, this provision had no rational nexus with the
D object sought to be achieved. In this behalf, his submission was
that if the purpose of the provision was to curb circulation of
black money, such an object was not achievable by seeding PAN
with Aadhaar inasmuch as Aadhaar is only for individuals. His
submission was that it is only the individuals who are responsible
E for generating black money or money laundering. This was the
basis for Mr Datar’s submission. We find it somewhat difficult to
accept such a submission.
105. Unearthing black money or checking money laundering is to
be achieved to whatever extent possible. Various measures can
F be taken in this behalf. If one of the measures is introduction of
Aadhaar into the tax regime, it cannot be denounced only because
of the reason that the purpose would not be achieved fully. Such
kind of menace, which is deep-rooted, needs to be tackled by
taking multiple actions and those actions may be initiated at the
same time. It is the combined effect of these actions which may
G yield results and each individual action considered in isolation may
not be sufficient. Therefore, rationality of a particular measure
cannot be challenged on the ground that it has no nexus with the
objective to be achieved. Of course, there is a definite objective.
For this purpose alone, individual measure cannot be ridiculed.
H We have already taken note of the recommendations of SIT on
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 471
[A. K. SIKRI, J.]

black money headed by Justice M.B. Shah. We have also A

reproduced the measures suggested by the Committee headed by
Chairman, CBDT on “Measures to Tackle Black Money in India
and Abroad”. They have, in no uncertain terms, suggested that
one singular proof of identity of a person for entering into finance/
business transactions, etc. may go a long way in curbing this foul
B
practice. That apart, even if solitary purpose of de-duplication of
PAN cards is taken into consideration, that may be sufficient to
meet the second test of Article 14. It has come on record that
11.35 lakh cases of duplicate PAN or fraudulent PAN cards have
already been detected and out of this 10.52 lakh cases pertain to
individual assessees. Seeding of Aadhaar with PAN has certain C
benefits which have already been enumerated. Furthermore, even
when we address the issue of shell companies, fact remains that
companies are after all floated by individuals and these individuals
have to produce documents to show their identity. It was sought
to be argued that persons found with duplicate/bogus PAN cards
D
are hardly 0.4% and, therefore, there was no need to have such a
provision. We cannot go by percentage figures. The absolute
number of such cases is 10.52 lakhs, which figure, by no means,
can be termed as miniscule, to harm the economy and create
adverse effect on the nation. The respondents have argued that
Aadhaar will ensure that there is no duplication of identity as E
biometrics will not allow that and, therefore, it may check the
growth of shell companies as well.
xx xx xx
127. It would be apposite to quote the following discussion by the
Comptroller and Auditor General in his report for the year 2011: F

“Widening of Tax Base

The assessee base grew over the last five years from 297.9
lakh taxpayers in 2005-06 to 340.9 lakh taxpayers in 2009-10
at the rate of 14.4 per cent. G
The Department has different mechanisms available to enhance
the assessee base which include inspection and survey,
information sharing with other tax departments and third-party
information available in annual information returns. Automation
also facilitates greater crosslinking. Most of these mechanisms
H
472 SUPREME COURT REPORTS [2018] 8 S.C.R.

A are available at the level of assessing officers. The Department

needs to holistically harness these mechanisms at macro level
to analyse the gaps in the assessee base. Permanent Account
Numbers (PANs) issued up to March 2009 and March 2010
were 807.9 lakhs and 958 lakhs respectively. The returns filled
in 2008-09 and 2009-10 were 326.5 lakhs and 340.9 lakhs
B
respectively. The gap between PANs and the number of returns
filed was 617.1 lakhs in 2009-10. The Board needs to identify
the reasons for the gap and use this information for appropriately
enhancing the assessee base. The gap may be due to issuance
of duplicate PAN cards and death of some PAN card
C holders. The Department needs to put in place appropriate
controls to weed out the duplicate PANs and also update
the position in respect of deceased assessee. It is significant
to note that the number of PAN card holders has increased
by 117.7 per cent between 2005-06 to 2009-10 whereas
the number of returns filed in the same period has increased
D
by 14.4 per cent only.
The total direct tax collection has increased by 128.8 per cent
during the period 2005-06 to 2009-10. The increase in the tax
collection was around nine times as compared to increase in
the assessee base. It should be the constant endeavour of the
E Department to ensure that the entire assessee base, once
correctly identified is duly meeting the entire tax liability.
However, no assurance could be obtained that the tax liability
on the assessee is being assessed and collected properly. This
comment is corroborated in Para 2.4.1 of Chapter 2 of this
F report where we have mentioned about our detection of
undercharge of tax amounting to Rs 12,842.7 crores in 19,230
cases audited during 2008-09. However, given the fact that
ours is a test audit, the Department needs to take firm steps
towards strengthening the controls available on the existing
statutes towards deriving an assurance on the tax collections.”
G
(emphasis supplied)
128. Likewise, the Finance Minister in his Budget speech in
February 2013 described the extent of tax evasion and offering
lesser income tax than what is actually due thereby labelling India
H as tax non-compliant, with the following figures:
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 473
[A. K. SIKRI, J.]

“India’s tax to GDP ratio is very low, and the proportion of A

direct tax to indirect tax is not optional from the viewpoint of
social justice. I place before you certain data to indicate that
our direct tax collection is not commensurate with the income
and consumption pattern of Indian economy. As against
estimated 4.2 crore persons engaged in organised sector
B
employment, the number of individuals filing return for salary
income are only 1.74 crores. As against 5.6 crore informal
sector individual enterprises and firms doing small business in
India, the number of returns filed by this category are only
1.81 crores. Out of the 13.94 lakh companies registered in
India up to 31-3-2014, 5.97 lakh companies have filed their C
returns for Assessment Year 2016-17. Of the 5.97 lakh
companies which have filed their returns for Assessment Year
2016-17 so far, as many as 2.76 lakh companies have shown
losses or zero income. 2.85 lakh companies have shown profit
before tax of less than Rs 1 crore. 28,667 companies have
D
shown profit between Rs 1 crore to Rs 10 crores, and only
7781 companies have profit before tax of more than Rs 10
crores. Among 3.7 crore individuals who filed the tax returns
in 2015-16, 99 lakhs show income below the exemption limit of
Rs 2.5 lakh p.a. 1.95 crores show income between Rs 2.5 to
Rs 5 lakhs, 52 lakhs show income between Rs 5 to Rs 10 lakhs E
and only 24 lakh people show income above Rs 10 lakhs. Of
the 76 lakh individual assessees who declare income above Rs
5 lakhs, 56 lakhs are in the salaried class. The number of people
showing income more than 50 lakhs in the entire country is
only 1.72 lakhs. We can contrast this with the fact that in the
F
last five years, more than 1.25 crore cars have been sold, and
number of Indian citizens who flew abroad, either for business
or tourism, is 2 crores in the year 2015. From all these figures
we can conclude that we are largely a tax non-compliant
society. The predominance of the cash in the economy makes
it possible for the people to evade their taxes. When too many G
people evade the taxes, the burden of their share falls on those
who are honest and compliant.”
129. The respondents have also claimed that linking of Aadhaar
with PAN is consistent with India’s international obligations and
H
474 SUPREME COURT REPORTS [2018] 8 S.C.R.

A goals. In this behalf, it is pointed out that India has signed the
Inter-Governmental Agreement (IGA) with USA on 9-7-2015, for
Improving International Tax Compliance and implementing the
Foreign Account Tax Compliance Act (FATCA). India has also
signed a multilateral agreement on 3-6-2015, to automatically
exchange information based on Article 6 of the Convention on
B
Mutual Administrative Assistance in Tax Matters under the
Common Reporting Scheme (CRS), formally referred to as the
Standard for Automatic Exchange of Financial Account
Information (AEoI). As part of India’s commitment under FATCA
and CRS, financial sector entities capture the details about the
C customers using the PAN. In case the PAN or submitted details
are found to be incorrect or fictitious, it will create major
embarrassment for the country. Under Non-filers Monitoring
System (NMS), the Income Tax Department identifies non-filers
with potential tax liabilities. Data analysis is carried out to identify
non-filers about whom specific information was available in AIR,
D
CIB data and TDS/TCS returns. Email/SMS and letters are sent
to the identified non-filers communicating the information summary
and seeking to know the submission details of income tax return.
In a large number of cases (more than 10 lakh PANs every year)
it is seen that the PAN holder neither submits the response and in
E many cases the letters are return unserved. Field verification by
field formations have found that in a large number of cases, the
PAN holder is untraceable. In many cases, the PAN holder
mentions that the transaction does not relate to them. There is a
need to strengthen PAN by linking it with Aadhaar/biometric
information to prevent use of wrong PAN for high value
F
transactions.”
422. Adverting to the aspect of proportionality, here again there
was a specific discussion in Binoy Viswam as this argument was raised,
though in the context of Article 19 of the Constitution. The Court after
explaining the doctrine of proportionality specifically held that
G proportionality test stood applied with. Following discussion in the said
judgment would amply demonstrate this proposition:
“65. While monitoring the PILs relating to night shelters for the
homeless and the right to food through the public distribution
system, this Court has lauded and complimented the efforts of the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 475
[A. K. SIKRI, J.]

State Governments for inter alia carrying out biometric A

identification of the head of family of each household to eliminate
fictitious, bogus and ineligible BPL/AAY household cards.
xx xx xx
125.2. Menace of corruption and black money has reached
alarming proportion in this country. It is eating into the economic B
progress which the country is otherwise achieving. It is not
necessary to go into the various reasons for this menace. However,
it would be pertinent to comment that even as per the observations
of the Special Investigation Team (SIT) on black money headed
by Justice M.B. Shah, one of the reasons is that persons have the C
option to quote their PAN or UID or passport number or driving
licence or any other proof of identity while entering into financial/
business transactions. Because of this multiple methods of giving
proofs of identity, there is no mechanism/system at present to
collect the data available with each of the independent proofs of
ID. For this reason, even SIT suggested that these databases be D
interconnected. To the same effect is the recommendation of the
Committee headed by Chairman, CBDT on measures to tackle
black money in India and abroad which also discusses the problem
of money laundering being done to evade taxes under the garb of
shell companies by the persons who hold multiple bogus PAN E
numbers under different names or variations of their names. That
can be possible if one uniform proof of identity, namely, UID is
adopted. It may go a long way to check and minimise the said
malaise.
125.3. Thirdly, Aadhaar or UID, which has come to be known as F
the most advanced and sophisticated infrastructure, may facilitate
law-enforcement agencies to take care of problem of terrorism
to some extent and may also be helpful in checking the crime and
also help investigating agencies in cracking the crimes. No doubt,
going by the aforesaid, and may be some other similarly valid
considerations, it is the intention of the Government to give fillip to G
Aadhaar movement and encourage the people of this country to
enrol themselves under the Aadhaar Scheme.
126. Whether such a scheme should remain voluntary or it can
be made mandatory imposing compulsiveness on the people to be
H
476 SUPREME COURT REPORTS [2018] 8 S.C.R.

A covered by Aadhaar is a different question which shall be

addressed at the appropriate stage. At this juncture, it is only
emphasised that mala fides cannot be attributed to this scheme.
In any case, we are concerned with the vires of Section 139-AA
of the Income Tax Act, 1961 which is a statutory provision. This
Court is, thus, dealing with the aspect of judicial review of
B
legislation. Insofar as this provision is concerned, the explanation
of the respondents in the counter-affidavit, which has already been
reproduced above, is that the primary purpose of introducing this
provision was to take care of the problem of multiple PAN cards
obtained in fictitious names. Such multiple cards in fictitious names
C are obtained with the motive of indulging into money laundering,
tax evasion, creation and channelising of black money. It is
mentioned that in de-duplication exercises, 11.35 lakh cases of
duplicate PANs/fraudulent PANs have been detected. Out of
these, around 10.52 lakhs pertain to the individual assessees.
Parliament in its wisdom thought that one PAN to one person can
D
be ensured by adopting Aadhaar for allotment of PAN to
individuals. As of today, that is the only method available i.e. by
seeding of existing PAN with Aadhaar. It is perceived as the best
method, and the only robust method of de-duplication of PAN
database. It is claimed by the respondents that the instance of
E duplicate Aadhaar is almost non-existent. It is also claimed that
seeding of PAN with Aadhaar may contribute to widening of the
tax case as well, by checking the tax evasions and bringing into
tax hold those persons who are liable to pay tax but deliberately
avoid doing so.”
F 423. It has been stated by the respondents, on affidavit, that
analysis of Form 61/60 data using PAN Aadhaar linkage shows that a
large number of PAN holders do not quote their PAN in the prescribed
transactions to prevent linking of the transactions to the PAN. The
analysis was performed by matching the Aadhaar number and person
name reported in Form 61 (which was possible only due to linking of
G financial transactions/accounts with Aadhaar) with the Aadhaar and name
of the entity available in the ITD PAN database (possible due to linking
of PAN with Aadhaar). This analysis identified 1.65 crore non-PAN
transactions reported through Form 61 (relating to FY 2016-17 and FY
2017-18) where PAN of the transacting party was present in the PAN
H database and was not mentioned filing a wrong form deliberately. These
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 477
[A. K. SIKRI, J.]

transactions totalled to around Rs. 33,000 crore (based on transaction A

amount reported). This is the amount of undisclosed high value
transaction which would have gone undetected had it not been for Aadhaar
linkage. Similar matching has also helped populating PAN in 1.12 lakh
non-PAN transactions reported under Statement of Financial Transactions
(SFT). Majority of the non-PAN transactions reported are around
B
Deposit in Cash, Investment in time deposit, Sale of immovable property,
Purchase of immovable property and Opening an account (other than
savings and time deposit). Thus, linking of PAN with Aadhaar will
significantly enhance legitimate collection of country’s revenue.
424. Taking into account the aforesaid consideration as well as
other factors mentioned above, we feel that there is a justifiable reason C
with the State for collection and storage of data in the form of Aadhaar
and linking it with PAN insofar as Section 139AA of the Income Tax
Act is concerned. We would like to reproduce para 311 of K.S.
Puttaswamy judgment, which reads as under:
“311. Apart from national security, the State may have justifiable D
reasons for the collection and storage of data. In a social welfare
State, the Government embarks upon programmes which provide
benefits to impoverished and marginalised sections of society. There
is a vital State interest in ensuring that scarce public resources
are not dissipated by the diversion of resources to persons who E
do not qualify as recipients. Allocation of resources for human
development is coupled with a legitimate concern that the utilisation
of resources should not be siphoned away for extraneous purposes.
Data mining with the object of ensuring that resources are properly
deployed to legitimate beneficiaries is a valid ground for the State
to insist on the collection of authentic data. But, the data which F
the State has collected has to be utilised for legitimate purposes
of the State and ought not to be utilised unauthorisedly for
extraneous purposes. This will ensure that the legitimate concerns
of the State are duly safeguarded while, at the same time,
protecting privacy concerns. Prevention and investigation of crime G
and protection of the revenue are among the legitimate aims of
the State. Digital platforms are a vital tool of ensuring good
governance in a social welfare State. Information technology—
legitimately deployed is a powerful enabler in the spread of
innovation and knowledge.”
H
478 SUPREME COURT REPORTS [2018] 8 S.C.R.

A 425. Following passages from Subramanian Swamy v. Union of

India, Ministry of Law & Ors.154 may also be relevant in this behalf
and the same are reproduced below:
“122. In State of Madras v. V.G. Row, the Court has ruled that
the test of reasonableness, wherever prescribed, should be applied
B 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
C enter into the judicial verdict.
xx xx xx
130. The principles as regards reasonable restriction as has been
stated by this Court from time to time are that the restriction should
D not be excessive and in public interest. The legislation should not
invade the rights and should not smack of arbitrariness. The test
of reasonableness cannot be determined by laying down any
abstract standard or general pattern. It would depend upon the
nature of the right which has been infringed or sought to be
infringed. The ultimate “impact”, that is, effect on the right has to
E be determined. The “impact doctrine” or the principle of “inevitable
effect” or “inevitable consequence” stands in contradistinction to
abuse or misuse of a legislation or a statutory provision depending
upon the circumstances of the case. The prevailing conditions of
the time and the principles of proportionality of restraint are to be
F kept in mind by the court while adjudging the constitutionality of a
provision regard being had to the nature of the right. The nature
of social control which includes public interest has a role. The
conception of social interest has to be borne in mind while
considering reasonableness of the restriction imposed on a right.
The social interest principle would include the felt needs of the
G society.
xx xx xx
194. Needless to emphasise that when a law limits a constitutional
right which many laws do, such limitation is constitutional if it is
154
H (2016) 7 SCC 221
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 479
[A. K. SIKRI, J.]

proportional. The law imposing restriction is proportional if it is A

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. Such limitations should not be
arbitrary or of an excessive nature beyond what is required in the
interest of the public. Reasonableness is judged with reference to
B
the objective which the legislation seeks to achieve, and must not
be in excess of that objective (see P.P. Enterprisesv. Union of
India). Further, the reasonableness is examined in an objective
manner from the standpoint of the interest of the general public
and not from the point of view of the person upon whom the
restrictions are imposed or abstract considerations (see Mohd. C
Hanif Quareshi v. State of Bihar)
On independent examination of the matter, the aforesaid exercise
undertaken in the Binoy Viswam is hereby affirmed as we are in
agreement therewith. We, thus, hold that the provisions of Section 139AA
of the Income Tax Act, 1961 meet the triple test of right to privacy, D
contained in K.S. Puttaswamy.
Prevention of Money Laundering Rules:
426. The petitioners have challenged amendment to Rule 9 of the
Prevention of Money Laundering (Maintenance of Records) Rules, 2005,
(Rules, 2005) which was amended by Prevention of Money Laundering E
(Maintenance of Records) Seventh Amendment Rules, 2017. Rule 9 of
the aforesaid Rules is amended by Second Amendment Rules, 2017
whereby following additions are made. The amendment reads as under:
“(b) in rule 9, for sub-rule (4) to sub-rule (9), the following sub-
rules shall be substituted, namely:-
F
(4) Where the client is an individual, who is eligible to be enrolled
for an Aadhaar number, he shall for the purpose of sub-rule (1)
submit to the reporting entity,-
(a) the Aadhaar number issued by the Unique Identification
Authority of India; and
G
(b) the Permanent Account Number or Form No. 60 as defined
in Income Tax Rules, 1962,
and such other documents including in respect of the nature of
business and financial status of the client as may be required by
the reporting entity:
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480 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Provided that where an Aadhaar number has not been assigned

to a client, the client shall furnish proof of application of enrolment
for Aadhaar and in case the Permanent Account Number is not
submitted, one certified copy of an ‘officially valid document’ shall
be submitted.
B Provided further that photograph need not be submitted by a client
falling under clause (b) of sub-rule (1).
(4A) Where the client is an individual, who is not eligible to be
enrolled for an Aadhaar number, he shall for the purpose of sub-
rule (1), submit to the reporting entity, the Permanent Account
C Number or Form No. 60 as defined in the Income Tax Rules,
1962:
Provided that if the client does not submit the Permanent Account
Number, he shall submit one certified copy of an ‘officially valid
document’ containing details of his identity and address, one recent
D photograph and such other documents including in respect of the
nature or business and financial status of the client as may be
required by the reporting entity.
(5) Notwithstanding anything contained in sub-rules (4) and (4A),
an individual who desires to open a small account in a banking
E company may be allowed to open such an account on production
of a self-attested photograph and affixation of signature or thumb
print, as the case may be, on the form for opening the account:
Provided that-
(i) the designated officer of the banking company, while opening
F the small account, certifies under his signature that the person
opening the account has affixed his signature or thumb print, as
the case may be, in his presence;
(ii) the small account shall be opened only at Core Banking Solution
linked banking company branches or in a branch where it is
G possible to manually monitor and ensure that foreign remittances
are not credited to a small account and that the stipulated limits on
monthly and annual aggregate of transactions and balance in such
accounts are not breached, before a transaction is allowed to take
place;
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 481
[A. K. SIKRI, J.]

(iii) the small account shall remain operational initially for a period A
of twelve months, and thereafter for a further period of twelve
months if the holder of such an account provides evidence before
the banking company of having applied for any of the officially
valid documents within twelve months of the opening of the said
account, with the entire relaxation provisions to be reviewed in
B
respect of the said account after twenty-four months;
(iv) the small account shall be monitored and when there is
suspicion of money laundering or financing of terrorism or other
high risk scenarios, the identity of client shall be established through
the production of officially valid documents, as referred to in sub-
rule (4) and the Aadhaar number of the client or where an Aadhaar C
number has not been assigned to the client, through the production
of proof of application towards enrolment for Aadhaar along with
an officially valid document;
Provided further that if the client is not eligible to be enrolled for
an Aadhaar number, the identity of client shall be established D
through the production of an officially valid document;
(v) the foreign remittance shall not be allowed to be credited into
the small account unless the identity of the client is fully established
through the production of officially valid documents, as referred
to in sub-rule (4) and the Aadhaar number of the client or where E
an Aadhaar number has not been assigned to the client, through
the production of proof of application towards enrolment for
Aadhaar along with an officially valid document:
Provided that if the client is not eligible to be enrolled for the
Aadhaar number, the identity of client shall be established through F
the production of an officially valid document.
(6) Where the client is a company, it shall for the purposes of sub-
rule (1), submit to the reporting entity the certified copies of the
following documents:-
G
(i) Certificate of incorporation;
(ii) Memorandum and Articles of Association;
(iii) A resolution from the Board of Directors and power of attorney
granted to its managers, officers or employees to transact on its
behalf; H
482 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (iv) (a) Aadhaar numbers; and

(b) Permanent Account Numbers or Form 60 as defined in the
Income Tax Rules, 1962,
issued to managers, officers or employees holding an attorney to
transact on the company’s behalf or where an Aadhaar number
B has not been assigned, proof of application towards enrolment for
Aadhaar and in case Permanent Account Number is not submitted
an officially valid document shall be submitted:
Provided that for the purpose of this clause if the managers,
officers or employees holding an attorney to transact on the
C company’s behalf are not eligible to be enrolled for Aadhaar number
and do not submit the Permanent Account Number, certified copy
of an officially valid document shall be submitted.
(7) Where the client is a partnership firm, it shall, for the purposes
of sub-rule (1), submit to the reporting entity the certified copies
D of the following documents:-
(i) registration certificate;
(ii) partnership deed; and
(iii) (a) Aadhaar number; and
E (b) Permanent Account Number or Form 60 as defined in the
Income Tax Rules, 1962,
issued to the person holding an attorney to transact on its behalf
or where an Aadhaar number has not been assigned, proof of
application towards enrolment for Aadhaar and in case Permanent
F Account Number is not submitted an officially valid document
shall be submitted:
Provided that for the purpose of this clause, if the person holding
an attorney to transact on the company’s behalf is not eligible to
be enrolled for Aadhaar number and does not submit the Permanent
G Account Number, certified copy of an officially valid document
shall be submitted.
(8) Where the client is a trust, it shall, for the purposes of sub-rule
(1) submit to the reporting entity the certified copies of the following
documents:-
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 483
[A. K. SIKRI, J.]

(i) registration certificate; A

(ii) trust deed; and
(iii) (a) Aadhaar number; and
(b) Permanent Account Number or Form 60 as defined in the
Income Tax Rules, 1962, B
issued to the person holding an attorney to transact on its behalf
or where Aadhaar number has not been assigned, proof of
application towards enrolment for Aadhaar and in case Permanent
Account Number is not submitted an officially valid document
shall be submitted: C
Provided that for the purpose of this clause if the person
holding an attorney to transact on the company’s behalf is not
eligible to be enrolled for Aadhaar number and does not submit
the Permanent Account Number, certified copy of an officially
valid document shall be submitted. D
(9) Where the client is an unincorporated association or a body of
individuals, it shall submit to the reporting entity the certified copies
of the following documents:-
(i) resolution of the managing body of such association or body of
individuals; E
(ii) power of attorney granted to him to transact on its behalf;
(iii) (a) the Aadhaar number; and
(b) Permanent Account Number or Form 60 as defined in the
Income Tax Rules, 1962, F
issued to the person holding an attorney to transact on its behalf
or where Aadhaar number has not been assigned, proof of
application towards enrolment for Aadhaar and in case the
Permanent Account Number is not submitted an officially valid
document shall be submitted; and G
(iv) such information as may be required by the reporting entity to
collectively establish the legal existence of such an association or
body of individuals:
Provided that for the purpose of this clause if the person holding
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484 SUPREME COURT REPORTS [2018] 8 S.C.R.

A an attorney to transact on the company’s behalf is not eligible to

be enrolled for Aadhaar number and does not submit the Permanent
Account Number, certified copy of an officially valid document
shall be submitted.”
(c) after sub-rule (14), the following sub-rules shall be inserted,
B namely,-
(15) Any reporting entity, at the time of receipt of the Aadhaar
number under provisions of this rule, shall carry out authentication
using either e-KYC authentication facility or Yes/No authentication
facility provided by Unique Identification Authority of India.
C (16) In case the client referred to in sub-rules (4) to (9) of rule 9
is not a resident or is a resident in the States of Jammu and Kashmir,
Assam or Meghalaya and does not submit the Permanent Account
Number, the client shall submit to the reporting entity one certified
copy of officially valid document containing details of his identity
D and address, one recent photograph and such other document
including in respect of the nature of business and financial status
of the client as may be required by the reporting entity.
(17) (a) In case the client, eligible to be enrolled for Aadhaar and
obtain a Permanent Account Number, referred to in sub-rules (4)
E to (9) of rule 9 does not submit the Aadhaar number or the
Permanent Account Number at the time of commencement of an
account based relationship with a reporting entity, the client shall
submit the same within a period of six months from the date of
the commencement of the account based relationship:

F Provided that the clients, eligible to be enrolled for Aadhaar and

obtain the Permanent Account Number, already having an account
based relationship with reporting entities prior to date of this
notification, the client shall submit the Aadhaar number and
Permanent Account Number by 31st December, 2017.
(b) As per regulation 12 of the Aadhaar (Enrolment and Update)
G
Regulations, 2016, the local authorities in the State Governments
or Union-territory Administrations have become or are in the
process of becoming UIDAI Registrars for Aadhaar enrolment
and are organising special Aadhaar enrolment camps at convenient
locations for providing enrolment facilities in consultation with
H UIDAI and any individual desirous of commencing an account
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 485
[A. K. SIKRI, J.]

based relationship as provided in this rule, who does not possess A

the Aadhaar number or has not yet enrolled for Aadhaar, may
also visit such special Aadhaar enrolment camps for Aadhaar
enrolment or any of the Aadhaar enrolment centres in the vicinity
with existing registrars of UIDAI.
(c) In case the client fails to submit the Aadhaar number and B
Permanent Account Number within the aforesaid six months
period, the said account shall cease to be operational till the time
the Aadhaar number and Permanent Account Number is submitted
by the client:
Provided that in case client already having an account C
based relationship with reporting entities prior to date of this
notification fails to submit the Aadhaar number and Permanent
Account Number by 31st December, 2017, the said account shall
cease to be operational till the time the Aadhaar number and
Permanent Account Number is submitted by the client.
D
(18) In case the identity information relating to the Aadhaar number
or Permanent Account Number submitted by the client referred
to in sub-rules (4) to (9) of rule 9 does not have current address of
the client, the client shall submit an officially valid documents to
the reporting entity.”
E
As can be seen from the above, linking of Aadhaar with the bank
account is now mandatory. It applies not only to those bank accounts
which would be opened after the bringing into force the amendment but
even the existing accounts as well.
427. Linking of a banking account to Aadhaar is challenged as F
violative of Articles 14, 19(1)(g) and 21 of the Constitution and also of
Prevention of Money Laundering Act, 2002. Elaborate submissions were
made by Mr. Arvind Datar on the aforesaid aspects. It was argued that
those persons who do not choose to enrol for Aadhaar number would
not be in a position to open the bank account or even operate the existing
bank account and there is no valid explanation as to why all bank accounts G
had to be authenticated. It was also argued that provisions of the Rule
referred to companies, firms, trust etc. as well, though the Aadhaar Act
is meant for establishing identity of individuals only. It was further
submitted that in case a person fails to link Aadhaar with the bank
account, such person would be rendered ineligible to operate the bank
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486 SUPREME COURT REPORTS [2018] 8 S.C.R.

A account, which would amount to forfeiting her money lying in the account
which belongs to her. This amounts to depriving the person from her
property and is, therefore, violative of Article 300A of the Constitution
as such a deprivation can take place only by primary legislation and not
by subordinate legislation in the form of Rules. Much emphasis was
also laid on the argument that the amended Rule does not pass the
B
proportionality test.
428. Mr. Tushar Mehta, learned Additional Solicitor General,
refuted the aforesaid submissions. He pointed out the objective with
which the Prevention of Money Laundering Act was enacted, namely,
to curb money laundering and black money, which is becoming a menace.
C Therefore, the amendment to Rules serves a legitimate State aim. He
argued that the Rules are not arbitrary and satisfies the proportionality
test also, having regard to the laudable objective which it seeks to serve.
429. After giving our thoughtful consideration to the various
aspects, we feel that it is not even necessary to deal with each and
D every contention raised by the petitioners. Our considered opinion is
that it does not meet the test of proportionality and is also violative of
right to privacy of a person which extends to banking details.
430. This Court has held in Ram Jethmalani & Ors. v. Union of
India & Ors.155 that revelation of bank details without prima facie
E ground of wrong doing would be violative of right to privacy. The said
decision has been approved in K.S. Puttaswamy. Under the garb of
prevention of money laundering or black money, there cannot be such a
sweeping provision which targets every resident of the country as a
suspicious person. Presumption of criminality is treated as
F disproportionate and arbitrary.
431. Nobody would keep black money in the bank account. We
accept the possibility of opening an account in an assumed name and
keeping black money therein which can be laundered as well. However,
the persons doing such an Act, if at all, would be very few. More
G importantly, those having bank accounts with modest balance and routine
transactions can be safely ruled out. Therefore, the provision in the
present form does not meet the test of proportionality. Therefore, for
checking this possible malice, there cannot be a mandatory provision for
linking of every bank account.
155
(2011) 8 SCC 1
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 487
[A. K. SIKRI, J.]

432. In Lal Babu Hussein v. Electoral Registration Officer A

and Others156, this Court had struck down the order of the Electoral
Officer asking the residents of a particular en masse to prove their identity
as unconstitutional. The Court held that the Electoral officer asking
residents of a particular area en masse to prove their identity was
unconstitutional. In the case, the EO went on the assumption that all
B
inhabitants of a particular area were foreigners, notwithstanding their
name appearing in earlier electoral rolls. The court held the following:
(a) Right to vote cannot be disallowed by insisting only on 4 proofs
of identity-voters can rely on any other proof of identity and obtain
right to vote.
C
(b) Notices were quashed because they failed to distinguish
between existing voters who had voted several times and new
voters.
(c) Large-scale presumption of illegality impermissible.
433. This linking is made compulsory not only for opening a new D
bank account but even for existing bank accounts with a stipulation that
if the same is not done then the account would be deactivated, with the
result that the holder of the account would not be entitled to operate the
bank account till the time seeding of the bank account with Aadhaar is
done. This amounts to depriving a person of his property. We find that E
this move of mandatory linking of Aadhaar with bank account does not
satisfy the test of proportionality. To recapitulate, the test of proportionality
requires that a limitation of the fundamental rights must satisfy the
following to be proportionate: (i) it is designated for a proper purpose;
(ii) measures are undertaken to effectuate the limitation are rationally
connected to the fulfilment of the purpose; (iii) there are no alternative F
less invasive measures; and (iv) there is a proper relation between the
importance of achieving the aim and the importance of limiting the right.
434. The Rules are disproportionate for the following reasons:
(a) a mere ritualistic incantation of “money laundering”, “black
G
money” does not satisfy the first test;
(b) no explanations have been given as to how mandatory linking
of every bank account will eradicate/reduce the problems of
“money laundering” and “black money”;
156
(1995) 3 SCC 100
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488 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (c) there are alternative methods of KYC which the banks are
already undertaking, the state has not discharged its burden as to
why linking of Aadhaar is imperative. We may point out that
RBI’s own Master Direction (KYC Direction, 2016) No.
DBR.AML.BC. No. 81/14.01.001/2015-16 allows using
alternatives to Aadhaar to open bank accounts.
B
435. There may be legitimate State aim for such a move as it
aims at prevention of money laundering and black money. However,
there has not been a serious thinking while making such a provision
applicable for every bank account. Maintaining back account in today’s
world has almost become a necessity. The Government itself has
C propagated the advantages thereof and is encouraging people to open
the bank account making it possible to have one even with Zero Balance
under the Pradhan Mantri Jan Dhan Yojana. The Government has
taken various measures to give a boost to digital economy. Under these
schemes, millions of persons, who are otherwise poor, are opening their
D bank accounts. They are also becoming habitual to the good practice of
entering into transactions through their banks and even by using digital
modes for operation of the bank accounts. Making the requirement of
Aadhaar compulsory for all such and other persons in the name of
checking money laundering or black money is grossly disproportionate.
There should have been a proper study about the methods adopted by
E persons who indulge in money laundering, kinds of bank accounts which
such persons maintain and target those bank accounts for the purpose
of Aadhaar. It has not been done.
436. We, thus, hold the amendment to Rule 9, by the Seventh
Amendment Rules, 2017, in the present form, to be unconstitutional.
F
Linking of Mobile Number with Aadhaar
437. By a Circular dated March 23, 2017, the Department of
Telecommunications has directed that all licensees shall reverify the
existing mobile subscribers (pre-paid and post-paid) through Aadhaar
G based e-KYC process. In fine, it amounts to mandatory linking of mobile
connections with Aadhaar, which requirement is not only in respect of
those individuals who would be becoming mobile subscribers, but applies
to existing subscribers as well.
438. It was the submission of the petitioners that such a linking of
the SIM card with Aadhaar number violates their right to privacy. It is
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 489
[A. K. SIKRI, J.]

argued that since it is a fundamental right, the restrictions/curb thereupon A

in the form of said linking does not satisfy the tests laid down in K.S.
Puttaswamy inasmuch as it is neither backed by any law nor it serves
any legitimate state aim nor does it meet the requirement of proportionality
test.
439. At the outset, it may be mentioned that the respondents have B
not been able to show any statutory provision which permits the
respondents to issue such a circular. It is administrative in nature. The
respondents have, however, tried to justify the same on the ground that
there have been numerous instances where non-verification of SIM cards
have posed serious security threats. Having regard to the same, this
Court had given direction in Lokniti Foundation v. Union of India & C
Anr.157 for the linking of SIM card with Aadhaar and it is pursuant to
those directions that the Telecom Regulatory Authority of India (TRAI)
recommended this step. Therefore, as per the respondents, Circular
dated March 23, 2017 is the outcome of the aforesaid directions and
recommendations which should be treated as backing of law. According D
to them, direction of this Court is a law under Article 141 of the
Constitution. In addition, it is also argued that since Section 4 of the
Indian Telegraph Act, 1885 empowers the Central Government to issue
licenses for establishing, maintaining and working telegraphs, it is within
the power of the Central Government to grant such licenses with condition
and, therefore, Circular dated March 23, 2017 may be read as condition E
for grant of licenses. On this premise, attempt is to show that the Circular
is issued in exercise of the powers contained in Section 4 of the Indian
Telegraph Act, 1885 which is the force of law.
440. In order to appreciate the respondents’ contentions, we
reproduce the relevant portion of Circular dated March 23, 2017, which F
reads as under:
“Hon’ble Supreme Court, in its order dated 06.02.2017 passed in
Writ Petition (C) No. 607/2016 filed by Lokniti Foundation v/s
Union of India, while taking into cognizance of “Aadhaar based
e-KYC process for issuing new telephone connection” issued by G
the Department, has inter-alia observed that “an effective process
has been evolved to ensure identity verification, as well as, the
addresses of all mobile phone subscribers for new subscribers.
In the near future, and more particularly, within one year from
157
(2017) 7 SCC 155 H
490 SUPREME COURT REPORTS [2018] 8 S.C.R.

A today, a similar verification will be completed, in case of existing

subscribers.” This amounts to a direction which is to be completed
within a time frame of one year.
2. A meeting was held on 13.02.2017 in the Department with the
telecom industry wherein UIDAI, TRAI and PMO representatives
B also participated to discuss the way forward to implement the
directions of Hon’ble Supreme Court. Detailed discussions and
deliberations were held in the meeting. The suggestions received
from the industry have been examined in the Department.
3. Accordingly, after taking into consideration the discussions
C held in the meeting and suggestions received from telecom industry,
the undersigned is directed to convey the approval of competent
authority that all Licensees shall re-verify all existing mobile
subscribers (prepaid and postpaid) through Aadhaar based e-KYC
process as mentioned in this office letter No. 800-29/2010-VAS
dated 16.08.2016. The instructions mentioned in subsequent
D paragraphs shall be strictly followed while carrying out the
re-verification exercise.”
441. In the first instance, it may be noticed that reference is made
to the judgment of this Court in Lokniti Foundation which has prompted
the Ministry of Communications to issue this circular. Paragraph 1 of
E the Circular itself states that the observations of the Court in Lokniti
Foundation amount to a direction. Thus, the Circular is not issued in
exercise of powers under Section 4 of the Indian Telegraph Act, 1885
(though that itself would be debatable as to whether Section 4 gives
such a power at all). Insofar as observations of this Court in that case
F are concerned, it is clear that in the said brief order, this Court did not go
into the issue as to whether linking of SIM card with Aadhaar would be
violate of privacy rights of the citizens. In that petition filed as a Public
Interest Litigation, a prayer was made to the effect that identity of each
subscriber and also the numbers should be verified so that unidentified
and unverified subscribers are not allowed to misuse mobile numbers.
G In response, the Union of India had filed the counter affidavit bringing to
the notice of the Court that the Department had launched Aadhaar based
e-KYC for issuing mobile connections. Based on this statement, orders
were passed by this Court. Lis, which is the subject matter of instant
petitions, was not raised in the said case. Obviously, the Court did not
H deliberate on the aspects of necessity of such a provision in the light of
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 491
[A. K. SIKRI, J.]

right to privacy. It was a case where both the sides were at ad idem. In A
the absence of any such issue or discussion thereupon, such a case
cannot be treated as precedent and as a corollary it cannot be termed as
‘law’ within the meaning of Article 13 or Article 141 of the Constitution.
Moreover, we are unable to read the order in Lokniti Foundation as a
direction of the Court. It simply disposed of the petition after recording
B
the submission of the Union of India to the effect that the grievance of
the petitioner therein stood redressed by evolving the procedure of linking.
On that the Court simply observed that undertaking given to this Court
will be seriously taken and given effect to. No doubt, the Central
Government, as a licensor, can impose conditions while granting licenses
under Section 4 of the Indian Telegraph Act, 1885. However, such C
directions/conditions have to be legally valid. When it affects the rights
of the third parties (like the petitioners herein who are not party to the
licenses granted by the Government to the Telecom Service Providers)
they have a right to challenge such directions. Here, the case made out
by the petitioners is that it infringes their right to privacy.
D
442. We are of the opinion that not only such a circular lacks
backing of a law, it fails to meet the requirement of proportionality as
well. It does not meet ‘necessity stage’ and ‘balancing stage’ tests to
check the primary menace which is in the mind of the respondent
authorities. There can be other appropriate laws and less intrusive
alternatives. For the misuse of such SIM cards by a handful of persons, E
the entire population cannot be subjected to intrusion into their private
lives. It also impinges upon the voluntary nature of the Aadhaar scheme.
We find it to be disproportionate and unreasonable state compulsion. It
is to be borne in mind that every individual/resident subscribing to a SIM
card does not enjoy the subsidy benefit or services mentioned in Section F
7 of the Act.
We, therefore, have no hesitation in declaring the Circular dated
March 23, 2017 as unconstitutional.
Violation of the orders passed by this Court:
G
Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so, the
effect thereof?
443. It was vehemently argued that this Court had passed number
of interim orders (which have already been taken note of in the beginning
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492 SUPREME COURT REPORTS [2018] 8 S.C.R.

A of this judgment) categorically stating that the Aadhaar enrolment is

voluntary; that no person would be forced to enrol under the scheme;
that a person would be told about the voluntary nature of the scheme;
and that enrolment shall not be given to any illegal migrant. As per the
petitioners, notwithstanding these orders, the Central Government as
well as the State Governments have issued various notifications requiring
B
Aadhaar authentication for benefits, subsidies and schemes mandatory.
In this manner, according to the petitioners, the respondents have violated
the orders of this Court and it is the majesty of the Court which is at
stake.
444. It is not in dispute that the aforesaid orders were passed
C when the Aadhaar Act had not come into force. After the enactment,
Section 7 had altered the position statutorily. The notifications and
circulars etc. are issued under this provision. Therefore, technically
speaking, it cannot be held that these circulars are issued in contravention
of the orders passed by this Court.
D 445. We feel that it would have been better had a clarification
been obtained from the Court after the passing of the Aadhaar Act before
issuing such circulars and orders under Section 7. When the matter is
sub judice in the Court and certain orders operating, the respondents
should have shown some fairness by taking that route, which expectation
E would be high where the respondent is the State. However, it would be
difficult to hold the respondents in contempt of the orders passed by this
Court. We may note that similar argument was advanced in Binoy
Viswam, namely, insertion of Section 139AA in the Income Tax Act was
in breach of interim orders passed by this Court. This argument was
repelled in the following manner:
F
“99. Main emphasis, however, is on the plea that Parliament or
any State Legislature cannot pass a law that overrules a judgment
thereby nullifying the said decision, that too without removing the
basis of the decision. This argument appears to be attractive
inasmuch as few orders are passed by this Court in pending writ
G petitions which are to the effect that the enrolment of Aadhaar
would be voluntary. However, it needs to be kept in mind that the
orders have been passed in the petitions where Aadhaar Scheme
floated as an executive/administrative measure has been
challenged. In those cases, the said orders are not passed in a
H case where the Court was dealing with a statute passed by
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 493
[A. K. SIKRI, J.]

Parliament. Further, these are interim orders as the Court was of A

the opinion that till the matter is decided finally in the context of
right to privacy issue, the implementation of the said Aadhaar
Scheme would remain voluntary. In fact, the main issue as to
whether Aadhaar card scheme whereby biometric data of an
individual is collected violates right to privacy and, therefore, is
B
offensive of Article 21 of the Constitution or not is yet to be decided.
In the process, the Constitution Bench is also called upon to decide
as to whether right to privacy is a part of Article 21 of the
Constitution at all. Therefore, no final decision has been taken. In
a situation like this, it cannot be said that Parliament is precluded
from or it is rendered incompetent to pass such a law. That apart, C
the argument of the petitioners is that the basis on which the
aforesaid orders are passed has to be removed, which is not done.
According to the petitioners, it could be done only by making the
Aadhaar Act compulsory. It is difficult to accept this contention
for two reasons: first, when the orders passed by this Court which
D
are relied upon by the petitioners were passed when the Aadhaar
Act was not even enacted. Secondly, as already discussed in detail
above, the Aadhaar Act and the law contained in Section 139-AA
of the Income Tax Act deal with two different situations and
operate in different fields. This argument of legislative
incompetence also, therefore, fails.” E
Summary and Conclusions:
446. (a) The architecture and structure of the Aadhaar Act reveals
that the UIDAI is established as a statutory body which is given the task
of developing the policy, procedure and system for issuing Aadhaar
numbers to individuals and also to perform authentication thereof as per F
the provisions of the Act. For the purpose of enrolment and assigning
Aadhaar numbers, enrolling agencies are recruited by the Authority. All
the residents in India are eligible to obtain an Aadhaar number. To enable
a resident to get Aadhaar number, he is required to submit demographic
as well as biometric information i.e., apart from giving information relating G
to name, date of birth and address, biometric information in the form of
photograph, fingerprint, iris scan is also to be provided. Aadhaar number
given to a particular person is treated as unique number as it cannot be
reassigned to any other individual.
(b) Insofar as subsidies, benefits or services to be given by the H
494 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Central Government or the State Government, as the case may be, is

concerned, these Governments can mandate that receipt of these
subsidies, benefits and services would be given only on furnishing proof
of possession of Aadhaar number (or proof of making an application for
enrolment, where Aadhaar number is not assigned). An added
requirement is that such individual would undergo authentication at the
B
time of receiving such benefits etc. A particular institution/body from
which the aforesaid subsidy, benefit or service is to be claimed by such
an individual, the intended recipient would submit his Aadhaar number
and is also required to give her biometric information to that agency. On
receiving this information and for the purpose of its authentication, the
C said agency, known as Requesting Entity (RE), would send the request
to the Authority which shall perform the job of authentication of Aadhaar
number. On confirming the identity of a person, the individual is entitled
to receive subsidy, benefit or service. Aadhaar number is permitted to
be used by the holder for other purposes as well.
D (c) In this whole process, any resident seeking to obtain an Aadhaar
number is, in the first instance, required to submit her demographic
information and biometric information at the time of enrolment. She,
thus, parts with her photograph, fingerprint and iris scan at that stage by
giving the same to the enrolling agency, which may be a private body/
person. Likewise, every time when such Aadhaar holder intends to
E receive a subsidy, benefit or service and goes to specified/designated
agency or person for that purpose, she would be giving her biometric
information to that RE, which, in turn, shall get the same authenticated
from the Authority before providing a subsidy, benefit or service.
(d) Attack of the petitioners to the Aadhaar programme and its
F formation/structure under the Aadhaar Act is founded on the arguments
that it is a grave risk to the rights and liberties of the citizens of this
country which are secured by the Constitution of India. It militates
against the constitutional abiding values and its foundational morality
and has the potential to enable an intrusive state to become a surveillance
G state on the basis of information that is collected in respect of each
individual by creation of a joint electronic mesh. In this manner, the Act
strikes at the very privacy of each individual thereby offending the right
to privacy which is elevated and given the status of fundamental right by
tracing it to Articles 14, 19 and 21 of the Constitution of India by a nine
Judge Bench judgment of this Court in K.S. Puttaswamy.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 495
[A. K. SIKRI, J.]

(e) The respondents, on the other hand, have attempted to shake A

the very foundation of the aforesaid structure of the petitioners’ case.
They argue that in the first instance, minimal biometric information of
the applicant, who intends to have Aadhaar number, is obtained which is
also stored in CIDR for the purpose of authentication. Secondly, no
other information is stored. It is emphasised that there is no data collection
B
in respect of religion, caste, tribe, language records of entitlement, income
or medical history of the applicant at the time of Aadhaar enrolment.
Thirdly, the Authority also claimed that the entire Aadhaar enrolment
eco-system is foolproof inasmuch as within few seconds of the biometrics
having been collected by the enrolling agency, the said information gets
transmitted the Authorities/CIDR, that too in an encrypted form, and C
goes out of the reach of the enrolling agency. Same is the situation at
the time of authentication as biometric information does not remain with
the requesting agency. Fourthly, while undertaking the authentication
process, the Authority simply matches the biometrics and no other
information is received or stored in respect of purpose, location or nature
D
or transaction etc. Therefore, the question of profiling does not arise at
all.
(f) In the aforesaid scenario, it is necessary, in the first instance,
to find out the extent of core information, biometric as well as
demographic, that is collected and stored by the Authority at the time of
enrolment as well as at the time of authentication. This exercise becomes E
necessary in order to consider the argument of the petitioners about the
profiling of the Aadhaar holders. On going through this aspect, on the
basis of the powerpoint presentation given by Dr. Ajay Bhushan Pandey,
CEO of UIDAI, and the arguments of both the sides, including the
questions which were put by the petitioners to Dr. Pandey and the F
answers thereupon, the Court has come to the conclusion that minimal
possible data, demographic and biometric, is obtained from the Aadhaar
holders.
(g) The Court also noticed that the whole architecture of Aadhaar
is devised to give unique identity to the citizens of this country. No G
doubt, a person can have various documents on the basis of which that
individual can establish her identify. It may be in the form of a passport,
PAN card, ration card and so on. For the purpose of enrolment itself
number of documents are prescribed which an individual can produce
on the basis of which Aadhaar card can be issued. Thus, such documents,
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496 SUPREME COURT REPORTS [2018] 8 S.C.R.

A in a way, are also proof of identity. However, there is a fundamental

difference between the Aadhaar card as a mean of identity and other
documents through which identity can be established. Enrolment for
Aadhaar card also requires giving of demographic information as well
as biometric information which is in the form of iris and fingerprints.
This process eliminates any chance of duplication. It is emphasised that
B
an individual can manipulate the system by having more than one or
even number of PAN cards, passports, ration cards etc. When it comes
to obtaining Aadhaar card, there is no possibility of obtaining duplicate
card. Once the biometric information is stored and on that basis Aadhaar
card is issued, it remains in the system with the Authority. Wherever
C there would be a second attempt for enrolling for Aadhaar and for this
purpose same person gives his biometric information, it would be
immediately get matched with the same biometric information already in
the system and the second request would stand rejected. It is for this
reason the Aadhaar card is known as Unique Identification (UID). Such
an identity is unparalleled.
D
(h) There is, then, another purpose for having such a system of
issuing unique identification cards in the form of Aadhaar card. A glimpse
thereof is captured under the heading ‘Introduction’ above, while
mentioning how and under what circumstances the whole project was
conceptualised. To put it tersely, in addition to enabling any resident to
E obtain such unique identification proof, it is also to empower marginalised
section of the society, particularly those who are illiterate and living in
abject poverty or without any shelter etc. It gives identity to such persons
also. Moreover, with the aid of Aadhaar card, they can claim various
privileges and benefits etc. which are actually meant for these people.
F (i) Identity of a person has a significance for every individual in
his/her life. In a civilised society every individual, on taking birth, is
given a name. Her place of birth and parentage also becomes important
as she is known in the society and these demographic particulars also
become important attribute of her personality. Throughout their lives,
G individuals are supposed to provide such information: be it admission in a
school or college or at the time of taking job or engaging in any profession
or business activity, etc. When all this information is available in one
place, in the form of Aadhaar card, it not only becomes unique, it would
also qualify as a document of empowerment. Added with this feature,
when an individual knows that no other person can clone her, it assumes
H greater significance.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 497
[A. K. SIKRI, J.]

(j) Thus, the scheme by itself can be treated as laudable when it A

comes to enabling an individual to seek Aadhaar number, more so, when
it is voluntary in nature. Howsoever benevolent the scheme may be, it
has to pass the muster of constitutionality. According to the petitioners,
the very architecture of Aadhaar is unconstitutional on various grounds.
(k) The Court has taken note of the heads of challenge of the B
Act, Scheme and certain Rules etc. and clarified that the matter is
examined with objective examination of the issues on the touchstone of
the constitutional provisions, keeping in mind the ethos of constitutional
democracy, rule of law, human rights and other basic features of the
Constitution.
C
Discussing the scope of judicial review, the Court has accepted
that apart from two grounds noticed in Binoy Viswam, on which legislative
Act can be invalidated [(a) the Legislature does not have competence to
make the law; and b) law made is in violation of fundamental rights or
any other constitutional provision], another ground, namely, manifest
arbitrariness, can also be the basis on which an Act can be invalidated. D
The issues are examined having regard to the aforesaid scope of judicial
review.
(l) From the arguments raised by the petitioners and the grounds
of challenge, it becomes clear that the main plank of challenge is that the
Aadhaar project and the Aadhaar Act infringes right to privacy. Inbuilt E
in this right to privacy is the right to live with dignity, which is a postulate
of right to privacy. In the process, discussion leads to the issue of
proportionality, viz. whether measures taken under the Aadhaar Act
satisfy the doctrine of proportionality.
(m) In view of the above, the Court discussed the contours of F
right to privacy, as laid down in K.S. Puttaswamy, principle of human
dignity and doctrine of proportionality. After taking note of the discussion
contained in different opinions of six Hon’ble Judges, it stands established,
without any pale of doubt, that privacy has now been treated as part of
fundamental right. The Court has held that, in no uncertain terms, that G
privacy has always been a natural right which given an individual freedom
to exercise control over his or her personality. The judgment further
affirms three aspects of the fundamental right to privacy, namely:
(i) intrusion with an individual’s physical body,
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498 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (ii) informational privacy and

(iii) privacy of choice.
(n) As succinctly put by Nariman, J., first aspect involves the
person himself/herself and guards a person’s rights relatable to his physical
body thereby controlling the uncalled invasion by the State. Insofar as
B second aspect, namely, informational privacy is concerned, it does not
deal with a person’s body but deals with a person’s mind. In this manner,
it protects a person by giving her control over the dissemination of material
that is personal to her and disallowing unauthorised use of such
information by the State. Third aspect of privacy relates to individual’s
C autonomy by protecting her fundamental personal choices. These aspects
have functional connection and relationship with dignity. In this sense,
privacy is a postulate of human dignity itself. Human dignity has a
constitutional value and its significance is acknowledged by the Preamble.
Further, by catena of judgments, human dignity is treated as fundamental
right as a facet not only of Article 21, but that of right to equality (Article
D 14) and also part of bouquet of freedoms stipulated in Article 19.
Therefore, privacy as a right is intrinsic of freedom, liberty and dignity.
Viewed in this manner, one can trace positive and negative contents of
privacy. The negative content restricts the State from committing an
intrusion upon the life and personal liberty of a citizen. Its positive content
E imposes an obligation on the State to take all necessary measures to
protect the privacy of the individual.
(o) In developing the aforesaid concepts, the Court has been
receptive to the principles in international law and international
instruments. It is a recognition of the fact that certain human rights cannot
F be confined within the bounds of geographical location of a nation but
have universal application. In the process, the Court accepts the concept
of universalisation of human rights, including the right to privacy as a
human right and the good practices in developing and understanding
such rights in other countries have been welcomed. In this hue, it can
also be remarked that comparative law has played a very significant
G role in shaping the aforesaid judgment on privacy in Indian context,
notwithstanding the fact that such comparative law has only persuasive
value.
The whole process of reasoning contained in different opinions of
the Hon’ble Judges would, thus, reflect that the argument that it is difficult
H to precisely define the common denominator of privacy, was rejected.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 499
[A. K. SIKRI, J.]

While doing so, the Court referred to various approaches to formulating A

privacy
(p) We have also remarked above, the taxonomy of privacy,
namely, on the basis of ‘harms’, ‘interest’ and ‘aggregation of rights’.
We have also discussed the scope of right to privacy with reference to
the cases at hand and the circumstances in which such a right can be B
limited. In the process, we have also taken note of the passage from the
judgment rendered by Nariman, J. in K.S. Puttaswamy stating the manner
in which law has to be tested when it is challenged on the ground that it
violates the fundamental right to privacy.
(q) One important comment which needs to be made at this stage C
relates to the standard of judicial review while examining the validity of
a particular law that allegedly infringes right to privacy. The question is
as to whether the Court is to apply ‘strict scrutiny’ standard or the ‘just,
fair and reasonableness’ standard. In the privacy judgment, different
observations are made by the different Hon’ble Judges and the aforesaid
aspect is not determined authoritatively, may be for the reason that the D
Bench was deciding the reference on the issue as to whether right to
privacy is a fundamental right or not and, in the process, it was called
upon to decide the specific questions referred to it. This Court preferred
to adopt a ‘just, fair and reasonableness’ standard which is in tune with
the view expressed by majority of Judges in their opinion. Even otherwise, E
this is in consonance with the judicial approach adopted by this Court
while construing ‘reasonable restrictions’ that the State can impose in
public interest, as provided in Article 19 of the Constitution. Insofar as
principles of human dignity are concerned, the Court, after taking note
of various judgments where this principle is adopted and elaborated,
summed up the essential ingredients of dignity jurisprudence by noticing F
that the basic principle of dignity and freedom of the individual is an
attribute of natural law which becomes the right of all individuals in a
constitutional democracy. Dignity has a central normative role as well
as constitutional value. This normative role is performed in three ways:
First, it becomes basis for constitutional rights; G
Second, it serves as an interpretative principle for determining
the scope of constitutional rights; and,
Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a constitutional
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500 SUPREME COURT REPORTS [2018] 8 S.C.R.

A right and such limitation is disproportionate, such a statute can be held to

be unconstitutional by applying the doctrine of proportionality.
(r) As per Dworkin, there are two principles about the concept of
human dignity, First principle regards an ‘intrinsic value’ of every person,
namely, every person has a special objective value which value is not
B only important to that person alone but success or failure of the lives of
every person is important to all of us. It can also be described as self
respect which represents the free will of the person, her capacity to
think for herself and to control her own life. The second principle is that
of ‘personal responsibility’, which means every person has the
responsibility for success in her own life and, therefore, she must use
C her discretion regarding the way of life that will be successful from her
point of view.
(s) Sum total of this exposition can be defined by explaining that
as per the aforesaid view dignity is to be treated as ‘empowerment’
which makes a triple demand in the name of ‘respect’ for human dignity,
D namely:
(i) respect for one’s capacity as an agent to make one’s own free
choices;
(ii) respect for the choices so made; and
E (iii) respect for one’s need to have a context and conditions in
which one can operate as a source of free and informed choice.
(t) In the entire formulation of dignity right, ‘respect’ for an
individual is the fulcrum, which is based on the principle of freedom and
capacity to make choices and a good or just social order is one which
F respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source
of free and informed choice’. The aforesaid discourse on the concept
of human dignity is from an individual point of view. That is the emphasis
of the petitioners as well. That would be one side of the coin. A very
important feature which the present case has brought into focus is another
dimension of human dignity, namely, in the form of ‘common good’ or
G
‘public good’. Thus, our endeavour here is to give richer and more
nuanced understanding to the concept of human dignity.
(u) We, therefore, have to keep in mind humanistic concept of
Human Dignity which is to be accorded to a particular segment of the
society and, in fact, a large segment. Their human dignity is based on
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 501
[A. K. SIKRI, J.]

the socio-economic rights that are read in to the Fundamental Rights as A

already discussed above.
When we read socio-economic rights into human dignity, the
community approach also assumes importance along with individualistic
approach to human dignity. It has now been well recognised that at its
core, human dignity contains three elements, namely, Intrinsic Value, B
Autonomy and Community Value. These are known as core values of
human dignity. These three elements can assist in structuring legal
reasoning and justifying judicial choices in ‘hard cases’.
(v) When it comes to dignity as a community value, it emphasises
the role of the community in establishing collective goals and restrictions C
on individual freedoms and rights on behalf of a certain idea of good life.
The relevant question here is in what circumstances and to what degree
should these actions be regarded as legitimate in a constitutional
democracy? The liberal predicament that the state must be neutral with
regard to different conceptions of the good in a plural society is not
incompatible, of course, with limitation resulting from the necessary D
coexistence of different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a legitimate idea
of justice, an “overlapping consensus”158 that can be shared by most
individuals and groups. Whenever such tension arises, the task of balancing
is to be achieved by the Courts. E
We would like to highlight one more significant feature which
the issues involved in the present case bring about. It is the balancing of
two facets of dignity of the same individual. Whereas, on the one hand,
right of personal autonomy is a part of dignity (and right to privacy),
another part of dignity of the same individual is to lead a dignified life as F
well (which is again a facet of Article 21 of the Constitution). Therefore,
in a scenario where the State is coming out with welfare schemes, which
strive at giving dignified life in harmony with human dignity and in the
process some aspect of autonomy is sacrificed, the balancing of the two
becomes an important task which is to be achieved by the Courts. For,
there cannot be undue intrusion into the autonomy on the pretext of G
conferment of economic benefits.
158
“Overlapping consensus” is a term coined by John Rawls that identifies basic ideas
of justice that can be shared by supporters of different religious, political, and moral
comprehensive doctrines.
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502 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (w) In this way, the concept of human dignity has been widened
to deal with the issues at hand. As far as doctrine of proportionality is
concerned, after discussing the approaches that are adopted by the
German Supreme Court and the Canadian Supreme Court, which are
somewhat different from each other, this Court has applied the tests as
laid down in Modern Dental College & Research Centre, which are
B
approved in K.S. Puttaswamy as well. However, at the same time, a
modification is done by focusing on the parameters set down of Bilchitz
which are aimed at achieving a more ideal approach.
447. After stating the aforesaid manner in which different issues
that arose are specified and discussed, these questions and conclusions
C thereupon are summarised below:
(1) Whether the Aadhaar Project creates or has tendency to
create surveillance state and is, thus, unconstitutional on this
ground?
D Incidental Issues:
(a) What is the magnitude of protection that need to be accorded
to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such protection,
including in respect of data minimisation, purpose limitation, time
E period for data retention and data protection and security?
Answer:
(a) The architecture of Aadhaar as well as the provisions of the
Aadhaar Act do not tend to create a surveillance state. This is ensured
by the manner in which the Aadhaar project operates.
F
(b) We have recorded in detail the powerpoint presentation that
was given by Dr. Ajay Bhushan Pandey, CEO of the Authority, which
brings out the following salient features:
(i) During the enrolment process, minimal biometric data in the
G form of iris and fingerprints is collected. The Authority does not collect
purpose, location or details of transaction. Thus, it is purpose blind. The
information collected, as aforesaid, remains in silos. Merging of silos is
prohibited. The requesting agency is provided answer only in ‘Yes’ or
‘No’ about the authentication of the person concerned. The authentication
process is not exposed to the Internet world. Security measures, as per
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 503
[A. K. SIKRI, J.]

the provisions of Section 29(3) read with Section 38(g) as well as A

Regulation 17(1)(d) of the Authentication Regulations, are strictly
followed and adhered to.
(ii) There are sufficient authentication security measures taken
as well, as demonstrated in Slides 14, 28 and 29 of the presentation.
(iii) The Authority has sufficient defence mechanism, as explained B
in Slide 30. It has even taken appropriate protection measures as
demonstrated in Slide 31.
(iv) There is an oversight by Technology and Architecture Review
Board (TARB) and Security Review Committee.
C
(v) During authentication no information about the nature of
transaction etc. is obtained.
(vi) The Authority has mandated use of Registered Devices (RD)
for all authentication requests. With these, biometric data is signed within
the device/RD service using the provider key to ensure it is indeed D
captured live. The device provider RD service encrypts the PID block
before returning to the host application. This RD service encapsulates
the biometric capture, signing and encryption of biometrics all within it.
Therefore, introduction of RD in Aadhaar authentication system rules
out any possibility of use of stored biometric and replay of biometrics
captured from other source. Requesting entities are not legally allowed E
to store biometrics captured for Aadhaar authentication under Regulation
17(1)(a) of the Authentication Regulations.
(vii) The Authority gets the AUA code, ASA code, unique device
code, registered device code used for authentication. It does not get
any information related to the IP address or the GPS location from where F
authentication is performed as these parameters are not part of
authentication (v2.0) and e-KYC (v2.1) API. The Authority would only
know from which device the authentication has happened, through which
AUA/ASA etc. It does not receive any information about at what location
the authentication device is deployed, its IP address and its operator and
G
the purpose of authentication. Further, the authority or any entity under
its control is statutorily barred from collecting, keeping or maintaining
any information about the purpose of authentication under Section 32(3)
of the Aadhaar Act.

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504 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (c) After going through the Aadhaar structure, as demonstrated

by the respondents in the powerpoint presentation from the provisions of
the Aadhaar Act and the machinery which the Authority has created for
data protection, we are of the view that it is very difficult to create
profile of a person simply on the basis of biometric and demographic
information stored in CIDR. Insofar as authentication is concerned, the
B
respondents rightly pointed out that there are sufficient safeguard
mechanisms. To recapitulate, it was specifically submitted that there
was security technologies in place (slide 28 of Dr. Pandey’s presentation),
24/7 security monitoring, data leak prevention, vulnerability management
programme and independent audits (slide 29) as well as the Authority’s
C defence mechanism (slide 30). It was further pointed out that the
Authority has taken appropriate pro-active protection measures, which
included disaster recovery plan, data backup and availability and media
response plan (slide 31). The respondents also pointed out that all security
principles are followed inasmuch as: (a) there is PKI-2048 encryption
from the time of capture, meaning thereby, as soon as data is given at
D
the time of enrolment, there is an end to end encryption thereof and it is
transmitted to the Authority in encrypted form. The said encryption is
almost foolproof and it is virtually impossible to decipher the same; (b)
adoption of best-in-class security standards and practices; and (c) strong
audit and traceability as well as fraud detection. Above all, there is an
E oversight of Technology and Architecture Review Board (TARB) and
Security Review Committee. This Board and Committee consists of
very high profiled officers. Therefore, the Act has endeavoured to provide
safeguards.
(d) Insofar as use and protection of data is concerned, having
F regard to the principles enshrined in various cases, Indian and foreign,
the matter is examined from the stand point of data minimisation, purpose
limitation, time period for data retention, data protection and security
(qua CIDR, requisite entities, enrolment agencies and Registrars,
authentication service agency, hacking, biometric solution providers,
substantive procedural or judicial safeguards). After discussing the
G aforesaid aspect with reference to certain provisions of the Aadhaar
Act, we are of the view that apprehensions of the petitioners stand
assuaged with the striking down or reading down or clarification of some
of the provisions, namely:

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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 505
[A. K. SIKRI, J.]

(i) Authentication records are not to be kept beyond a period of A

six months, as stipulated in Regulation 27(1) of the
Authentication Regulations. This provision which permits
records to be archived for a period of five years is held to be
bad in law.
(ii) Metabase relating to transaction, as provided in Regulation 26 B
of the aforesaid Regulations in the present form, is held to be
impermissible, which needs suitable amendment.
(iii) Section 33(1) of the Aadhaar Act is read down by clarifying
that an individual, whose information is sought to be released,
shall be afforded an opportunity of hearing. C
(iv) Insofar as Section 33(2) of the Act in the present form is
concerned, the same is struck down.
(v) That portion of Section 57 of the Aadhaar Act which enables
body corporate and individual to seek authentication is held to
be unconstitutional. D
(vi) We have also impressed upon the respondents, to bring out a
robust data protection regime in the form of an enactment on
the basis of Justice B.N. Srikrishna (Retd.) Committee Report
with necessary modifications thereto as may be deemed
appropriate. E
(2) Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?
Answer:
(a) After detailed discussion, it is held that all matters pertaining F
to an individual do not qualify as being an inherent part of right to privacy.
Only those matters over which there would be a reasonable expectation
of privacy are protected by Article 21. This can be discerned from the
reading of Paras 297 to 307 of the judgment.
(b) The Court is also of the opinion that the triple test laid down in G
order to adjudge the reasonableness of the invasion to privacy has been
made. The Aadhaar scheme is backed by the statute, i.e. the Aadhaar
Act. It also serves legitimate State aim, which can be discerned from
the Introduction to the Act as well as the Statement of Objects and
Reasons which reflect that the aim in passing the Act was to ensure that
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506 SUPREME COURT REPORTS [2018] 8 S.C.R.

A social benefit schemes reach the deserving community. The Court noted
that the failure to establish identity of an individual has proved to be a
major hindrance for successful implementation of those programmes as
it was becoming difficult to ensure that subsidies, benefits and services
reach the unintended beneficiaries in the absence of a credible system
to authenticate identity of beneficiaries. The Statement of Objects and
B
Reasons also discloses that over a period of time, the use of Aadhaar
number has been increased manifold and, therefore, it is also necessary
to take measures relating to ensuring security of the information provided
by the individuals while enrolling for Aadhaar card.
(c) It may be highlighted that the petitioners are making their claim
C on the basis of dignity as a facet of right to privacy. On the other hand,
Section 7 of the Aadhaar Act is aimed at offering subsidies, benefits or
services to the marginalised section of the society for whom such welfare
schemes have been formulated from time to time. That also becomes
an aspect of social justice, which is the obligation of the State stipulated
D in Para IV of the Constitution. The rationale behind Section 7 lies in
ensuring targeted delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India. In discharge of its solemn
Constitutional obligation to enliven the Fundamental Rights of life and
personal liberty (Article 21) to ensure Justice, Social, Political and
Economic and to eliminate inequality (Article 14) with a view to ameliorate
E the lot of the poor and the Dalits, the Central Government has launched
several welfare schemes. Some such schemes are PDS, scholarships,
mid day meals, LPG subsidies, etc. These schemes involve 3%
percentage of the GDP and involve a huge amount of public money.
Right to receive these benefits, from the point of view of those who
F deserve the same, has now attained the status of fundamental right based
on the same concept of human dignity, which the petitioners seek to
bank upon. The Constitution does not exist for a few or minority of the
people of India, but “We the people”. The goals set out in the Preamble
of the Constitution do not contemplate statism and do not seek to preserve
justice, liberty, equality an fraternity for those who have the means and
G opportunity to ensure the exercise of inalienable rights for themselves.
These goals are predominantly or at least equally geared to “secure to
all its citizens”, especially, to the downtrodden, poor and exploited, justice,
liberty, equality and “to promote” fraternity assuring dignity. Interestingly,
the State has come forward in recognising the rights of deprived section
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 507
[A. K. SIKRI, J.]

of the society to receive such benefits on the premise that it is their A

fundamental right to claim such benefits. It is acknowledged by the
respondents that there is a paradigm shift in addressing the problem of
security and eradicating extreme poverty and hunger. The shift is from
the welfare approach to a right based approach. As a consequence,
right of everyone to adequate food no more remains based on Directive
B
Principles of State Policy (Art 47), though the said principles remain a
source of inspiration. This entitlement has turned into a Constitutional
fundamental right. This Constitutional obligation is reinforced by
obligations under International Convention.
(d) Even the petitioners did not seriously question the purpose and
bona fides of the Legislature enacting the law. C

(e) The Court also finds that the Aadhaar Act meets the test of
proportionality as the following components of proportionality stand
satisfied:
(i) A measure restricting a right must have a legitimate goal D
(legitimate goal stage).
(ii) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
(iii) There must not be any less restrictive but equally effective
alternative (necessity stage). E
(iv) The measure must not have a disproportionate impact on the
right holder (balancing stage).
(f) In the process, the Court has taken note of various judgments
pronounced by this Court pertaining to right to food, issuance of BPL
F
Cards, LPG connections and LPG cylinders at minimal cost, old age and
other kind of pensions to deserving persons, scholarships and
implementation of MGNREGA scheme.
(g) The purpose behind these orders was to ensure that the
deserving beneficiaries of the scheme are correctly identified and are
able to receive the benefits under the said scheme, which is their G
entitlement. The orders also aimed at ensuring ‘good governance’ by
bringing accountability and transparency in the distribution system with
the pious aim in mind, namely, benefits actually reached those who are
rural, poor and starving.
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508 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (h) All this satisfies the necessity stage test, particularly in the
absence of any less restrictive but equally effective alternative.
(i) Insofar as balancing is concerned, the matter is examined at
two levels:
(i) Whether, ‘legitimate state interest’ ensures ‘reasonable
B tailoring’? There is a minimal intrusion into the privacy and the
law is narrowly framed to achieve the objective. Here the Act is
to be tested on the ground that whether it is found on a balancing
test that the social or public interest and the reasonableness of the
restrictions outweigh the particular aspect of privacy, as claimed
C by the petitioners. This is the test we have applied in the instant
case.
(ii) There needs to be balancing of two competing fundamental
rights, right to privacy on the one hand and right to food, shelter
and employment on the other hand. Axiomatically both the rights
D are founded on human dignity. At the same time, in the given
context, two facets are in conflict with each other. The question
here would be, when a person seeks to get the benefits of welfare
schemes to which she is entitled to as a part of right to live life
with dignity, whether her sacrifice to the right to privacy, is so
invasive that it creates imbalance?
E
(j) In the process, sanctity of privacy in its functional relationship
with dignity is kept in mind where it says that legitimate expectation of
privacy may vary from intimate zone to the private zone and from the
private to public arena. Reasonable expectation of privacy is also taken
into consideration. The Court finds that as the information collected at
F the time of enrolment as well as authentication is minimal, balancing at
the first level is met. Insofar as second level, namely, balancing of two
competing fundamental rights is concerned, namely, dignity in the form
of autonomy (informational privacy) and dignity in the form of assuring
better living standards of the same individual, the Court has arrived at
G the conclusion that balancing at the second level is also met. The detailed
discussion in this behalf amply demonstrates that enrolment in Aadhaar
of the unprivileged and marginalised section of the society, in order to
avail the fruits of welfare schemes of the Government, actually amounts
to empowering these persons. On the one hand, it gives such individuals
their unique identity and, on the other hand, it also enables such individuals
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 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 509
[A. K. SIKRI, J.]

to avail the fruits of welfare schemes of the Government which are A

floated as socio-economic welfare measures to uplift such classes. In
that sense, the scheme ensures dignity to such individuals. This facet of
dignity cannot be lost sight of and needs to be acknowledged. We are,
by no means, accepting that when dignity in the form of economic
welfare is given, the State is entitled to rob that person of his liberty.
B
That can never be allowed. We are concerned with the balancing of the
two facets of dignity. Here we find that the inroads into the privacy
rights where these individuals are made to part with their biometric
information, is minimal. It is coupled with the fact that there is no data
collection on the movements of such individuals, when they avail benefits
under Section 7 of the Act thereby ruling out the possibility of creating C
their profiles. In fact, this technology becomes a vital tool of ensuring
good governance in a social welfare state. We, therefore, are of the
opinion that the Aadhaar Act meets the test of balancing as well.
(k) Insofar as the argument based on probabilistic system of
Aadhaar, leading to ‘exclusion’ is concerned, the Authority has claimed D
that biometric accuracy is 99.76% and the petitioners have also proceeded
on that basis. In this scenario, if the Aadhaar project is shelved, 99.76%
beneficiaries are going to suffer. Would it not lead to their exclusion? It
will amount to throwing the baby out of hot water along with the water.
In the name of 0.232% failure (which can in any case be remedied)
should be revert to the pre-Aadhaar stage with a system of leakages, E
pilferages and corruption in the implementation of welfare schemes meant
for marginalised section of the society, the full fruits thereof were not
reaching to such people?
(l) The entire aim behind launching this programme is the ‘inclusion’
of the deserving persons who need to get such benefits. When it is F
serving much larger purpose by reaching hundreds of millions of deserving
persons, it cannot be crucified on the unproven plea of exclusion of
some. It is clarified that the Court is not trivialising the problem of
exclusion if it is there. However, what we are emphasising is that remedy
is to plug the loopholes rather than axe a project, aimed for the welfare G
of large section of the society. Obviously, in order to address the failures
of authentication, the remedy is to adopt alternate methods for identifying
such persons, after finding the causes of failure in their cases. We have
chosen this path which leads to better equilibrium and have given
necessary directions also in this behalf, viz:
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510 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (i) We have taken on record the statement of the learned Attorney

General that no deserving person would be denied the benefit of a
scheme on the failure of authentication.
(ii) We are also conscious of the situation where the formation of
fingerprints may undergo change for various reasons. It may
B happen in the case of a child after she grows up; it may happen in
the case of an individual who gets old; it may also happen because
of damage to the fingers as a result of accident or some disease
etc. or because of suffering of some kind of disability for whatever
reason. Even iris test can fail due to certain reasons including
blindness of a person. We again emphasise that no person
C rightfully entitled to the benefits shall be denied the same on such
grounds. It would be appropriate if a suitable provision be made
in the concerned regulations for establishing an identity by alternate
means, in such situations.
(m) As far as subsidies, services and benefits are concerned, their
D scope is not to be unduly expanded thereby widening the net of Aadhaar,
where it is not permitted otherwise. In this respect, it is held as under:
(i) ‘Benefits’ and ‘services’ as mentioned in Section 7 should be
those which have the colour of some kind of subsidies etc., namely,
welfare schemes of the Government whereby Government is
E doling out such benefits which are targeted at a particular deprived
class.
(ii) It would cover only those ‘benefits’ etc. the expenditure thereof
has to be drawn from the Consolidated Fund of India.

F (iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the
requirement of Aadhaar mandatory as they are outside the purview
of Section 7 and are not backed by any law.
(3) Whether children can be brought within the sweep of
Sections 7 and 8 of the Aadhaar Act?
G Answer:
(a) For the enrolment of children under the Aadhaar Act, it would
be essential to have the consent of their parents/guardian.
(b)On attaining the age of majority, such children who are enrolled
under Aadhaar with the consent of their parents, shall be given the option
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 511
[A. K. SIKRI, J.]

to exit from the Aadhaar project if they so choose in case they do not A
intend to avail the benefits of the scheme.
(c) Insofar as the school admission of children is concerned,
requirement of Aadhaar would not be compulsory as it is neither a service
nor subsidy. Further, having regard to the fact that a child between the
age of 6 to 14 years has the fundamental right to education under Article B
21A of the Constitution, school admission cannot be treated as ‘benefit’
as well.
(d) Benefits to children between 6 to 14 years under Sarv Shiksha
Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
(e) For availing the benefits of other welfare schemes which are C
covered by Section 7 of the Aadhaar Act, though enrolment number can
be insisted, it would be subject to the consent of the parents, as mentioned
in (a) above.
(f) We also clarify that no child shall be denied benefit of any of
these schemes if, for some reasons, she is not able to produce the Aadhaar D
number and the benefit shall be given by verifying the identity on the
basis of any other documents. This we say having regard to the statement
which was made by Mr. K.K. Venugopal, learned Attorney General for
India, at the Bar.
(4) Whether the following provisions of the Aadhaar Act and E
Regulations suffer from the vice of unconstitutionality:
(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23 F
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6 G
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
H
512 SUPREME COURT REPORTS [2018] 8 S.C.R.

A (xi) Sections 23 and 54

(xii) Section 23(2)(g) read with Chapter VI & VII – Regulations
27 to 32
(xiii) Section 29
B (xiv) Section 33
(xv) Section 47
(xvi) Section 48
(xvii) Section 57
C (xviii) Section 59
Answer:
(a) Section 2(d) which pertains to authentication records, such
records would not include metadata as mentioned in Regulation 26(c) of
the Aadhaar (Authentication) Regulations, 2016. Therefore, this provision
D in the present form is struck down. Liberty, however, is given to reframe
the regulation, keeping in view the parameters stated by the Court.
(b) Insofar as Section 2(b) is concerned, which defines ‘resident’,
the apprehension expressed by the petitioners was that it should not lead
to giving Aadhaar card to illegal immigrants. We direct the respondent
E to take suitable measures to ensure that illegal immigrants are not able
to take such benefits.
(c) Retention of data beyond the period of six months is
impermissible. Therefore, Regulation 27 of Aadhaar (Authentication)
Regulations, 2016 which provides archiving a data for a period of five
F years is struck down.
(d) Section 29 in fact imposes a restriction on sharing information
and is, therefore, valid as it protects the interests of Aadhaar number
holders. However, apprehension of the petitioners is that this provision
entitles Government to share the information ‘for the purposes of as
G may be specified by regulations’. The Aadhaar (Sharing of Information)
Regulations, 2016, as of now, do not contain any such provision. If a
provision is made in the regulations which impinges upon the privacy
rights of the Aadhaar card holders that can always be challenged.
(e) Section 33(1) of the Act prohibits disclosure of information,
H including identity information or authentication records, except when it
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 513
[A. K. SIKRI, J.]

is by an order of a court not inferior to that of a District Judge. We have A

held that this provision is to be read down with the clarification that an
individual, whose information is sought to be released, shall be afforded
an opportunity of hearing. If such an order is passed, in that eventuality,
he shall also have right to challenge such an order passed by approaching
the higher court. During the hearing before the concerned court, the
B
said individual can always object to the disclosure of information on
accepted grounds in law, including Article 20(3) of the Constitution or
the privacy rights etc.
(f) Insofar as Section 33(2) is concerned, it is held that disclosure
of information in the interest of national security cannot be faulted with.
However, for determination of such an eventuality, an officer higher C
than the rank of a Joint Secretary should be given such a power. Further,
in order to avoid any possible misuse, a Judicial Officer (preferably a
sitting High Court Judge) should also be associated with. We may point
out that such provisions of application of judicial mind for arriving at the
conclusion that disclosure of information is in the interest of national D
security, are prevalent in some jurisdictions. In view thereof, Section
33(2) of the Act in the present form is struck down with liberty to enact
a suitable provision on the lines suggested above.
(g) Insofar as Section 47 of the Act which provides for the
cognizance of offence only on a complaint made by the Authority or any E
officer or person authorised by it is concerned, it needs a suitable
amendment to include the provision for filing of such a complaint by an
individual/victim as well whose right is violated.
(h) Insofar as Section 57 in the present form is concerned, it is
susceptible to misuse inasmuch as: (a) It can be used for establishing the F
identity of an individual ‘for any purpose’. We read down this provision
to mean that such a purpose has to be backed by law. Further, whenever
any such “law” is made, it would be subject to judicial scrutiny. (b) Such
purpose is not limited pursuant to any law alone but can be done pursuant
to ‘any contract to this effect’ as well. This is clearly impermissible as
a contractual provision is not backed by a law and, therefore, first G
requirement of proportionality test is not met. (c) Apart from authorising
the State, even ‘any body corporate or person’ is authorised to avail
authentication services which can be on the basis of purported agreement
between an individual and such body corporate or person. Even if we
presume that legislature did not intend so, the impact of the aforesaid H
514 SUPREME COURT REPORTS [2018] 8 S.C.R.

A features would be to enable commercial exploitation of an individual

biometric and demographic information by the private entities. Thus,
this part of the provision which enables body corporate and individuals
also to seek authentication, that too on the basis of a contract between
the individual and such body corporate or person, would impinge upon
the right to privacy of such individuals. This part of the section, thus, is
B
declared unconstitutional.
(i) Other provisions of Aadhaar Act are held to be valid, including
Section 59 of the Act which, according to us, saves the pre-enactment
period of Aadhaar project, i.e. from 2009-2016.
C (5) Whether the Aadhaar Act defies the concept of Limited
Government, Good Governance and Constitutional Trust?
Answer:
Aadhaar Act meets the concept of Limited Government, Good
Governance and Constitutional Trust.
D
(6) Whether the Aadhaar Act could be passed as ‘Money Bill’
within the meaning of Article 110 of the Constitution?
Answer:
(a) We do recognise the importance of Rajya Sabha (Upper House)
E in a bicameral system of the Parliament. The significance and relevance
of the Upper House has been succinctly exemplified by this Court in
Kuldip Nayar’s case. The Rajya Sabha, therefore, becomes an important
institution signifying constitutional fedaralism. It is precisely for this
reason that to enact any statute, the Bill has to be passed by both the
Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional
F
mandate. The only exception to the aforesaid Parliamentary norm is
Article 110 of the Constitution of India. Having regard to this overall
scheme of bicameralism enshrined in our Constitution, strict interpretation
has to be accorded to Article 110. Keeping in view these principles, we
have considered the arguments advanced by both the sides.
G (b) The petitioners accept that Section 7 of the Aadhaar Act has
the elements of ‘Money Bill’. The attack is on the premise that some
other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill
(which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar
Act) do not fall under any of the clauses of Article 110 of the Constitution
H and, therefore, Bill was not limited to only those subjects mentioned in
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 515
[A. K. SIKRI, J.]

Article 110. Insofar as Section 7 is concerned, it makes receipt of subsidy, A

benefit or service subject to establishing identity by the process of
authentication under Aadhaar or furnish proof of Aadhaar etc. It is also
very clearly declared in this provision that the expenditure incurred in
respect of such a subsidy, benefit or service would be from the
Consolidated Fund of India. It is also accepted by the petitioners that
B
Section 7 is the main provision of the Act. In fact, introduction to the
Act as well as Statement of Objects and Reasons very categorically
record that the main purpose of Aadhaar Act is to ensure that such
subsidies, benefits and services reach those categories of persons, for
whom they are actually meant.
(c) As all these three kinds of welfare measures are sought to be C
extended to the marginalised section of society, a collective reading thereof
would show that the purpose is to expand the coverage of all kinds of
aid, support, grant, advantage, relief provisions, facility, utility or assistance
which may be extended with the support of the Consolidated Fund of
India with the objective of targeted delivery. It is also clear that various D
schemes which can be contemplated by the aforesaid provisions, relate
to vulnerable and weaker section of the society. Whether the social
justice scheme would involve a subsidy or a benefit or a service is merely
a matter of the nature and extent of assistance and would depend upon
the economic capacity of the State. Even where the state subsidizes in
part, whether in cash or kind, the objective of emancipation of the poor E
remains the goal.
(d) The respondents are right in their submission that the expression
subsidy, benefit or service ought to be understood in the context of targeted
delivery to poorer and weaker sections of society. Its connotation ought
not to be determined in the abstract. For as an abstraction one can F
visualize a subsidy being extended by Parliament to the King; by
Government to the Corporations or Banks; etc. The nature of subsidy
or benefit would not be the same when extended to the poor and
downtrodden for producing those conditions without which they cannot
live a life with dignity. That is the main function behind the Aadhaar Act G
and for this purpose, enrolment for Aadhaar number is prescribed in
Chapter II which covers Sections 3 to 6. Residents are, thus, held entitled
to obtain Aadhaar number. We may record here that such an enrolment
is of voluntary nature. However, it becomes compulsory for those who
seeks to receive any subsidy, benefit or service under the welfare scheme
of the Government expenditure whereof is to be met from the H
516 SUPREME COURT REPORTS [2018] 8 S.C.R.

A Consolidated Fund of India. It follows that authentication under Section

7 would be required as a condition for receipt of a subsidy, benefit or
service only when such a subsidy, benefit or service is taken care of by
Consolidated Fund of India. Therefore, Section 7 is the core provision
of the Aadhaar Act and this provision satisfies the conditions of Article
110 of the Constitution. Upto this stage, there is no quarrel between the
B
parties.
(e) On examining of the other provisions pointed out by the
petitioners in an attempt to take it out of the purview of Money Bill, we
are of the view that those provisions are incidental in nature which have
been made in the proper working of the Act. In any case, a part of
C Section 57 has already been declared unconstitutional. We, thus, hold
that the Aadhaar Act is validly passed as a ‘Money Bill’.
(7) Whether Section 139AA of the Income Tax Act, 1961 is
violative of right to privacy and is, therefore, unconstitutional?
D Answer:
Validity of this provision was upheld in the case of Binoy Viswam
by repelling the contentions based on Articles 14 and 19 of the
Constitution. The question of privacy which, at that time, was traced to
Article 21, was left open. The matter is reexamined on the touchstone
E of principles laid down in K.S. Puttaswamy. The matter has also been
examined keeping in view that manifest arbitrariness is also a ground of
challenge to the legislative enactment. Even after judging the matter in
the context of permissible limits for invasion of privacy, namely: (i) the
existence of a law; (ii) a ‘legitimate State interest’; and (iii) such law
should pass the ‘test of proportionality’, we come to the conclusion that
F all these tests are satisfied. In fact, there is specific discussion on these
aspects in Binoy Viswam’s case as well.
(8) Whether Rule 9 of the Prevention of Money Laundering
(Maintenance of Records) Rules, 2005 and the notifications issued
thereunder which mandates linking of Aadhaar with bank accounts
G is unconstitutional?
Answer:
(a) We hold that the provision in the present form does not meet
the test of proportionality and, therefore, violates the right to privacy of
a person which extends to banking details.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA 517
[A. K. SIKRI, J.]

(b) This linking is made compulsory not only for opening a new A
bank account but even for existing bank accounts with a stipulation that
if the same is not done then the account would be deactivated, with the
result that the holder of the account would not be entitled to operate the
bank account till the time seeding of the bank account with Aadhaar is
done. This amounts to depriving a person of his property. We find that
B
this move of mandatory linking of Aadhaar with bank account does not
satisfy the test of proportionality. To recapitulate, the test of
proportionality requires that a limitation of the fundamental rights must
satisfy the following to be proportionate: (i) it is designated for a proper
purpose; (ii) measures are undertaken to effectuate the limitation are
rationally connected to the fulfilment of the purpose; (iii) there are no C
alternative less invasive measures; and (iv) there is a proper relation
between the importance of achieving the aim and the importance of
limiting the right.
(c) The Rules are held to be disproportionate for the reasons stated
in the main body of this Judgment. D
(9) Whether Circular dated March 23, 2017 issued by the
Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?
Answer:
E
Circular dated March 23, 2017 mandating linking of mobile number
with Aadhaar is held to be illegal and unconstitutional as it is not backed
by any law and is hereby quashed.
(10) Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so, the effect F
thereof?
Answer:
This question is answered in the negative.
448. In view of the aforesaid discussion and observations, the
writ petitions, transferred cases, special leave petition, contempt petitions G
and all the pending applications stand disposed of.