A Critical Analysis Of UID (Aadhar Card) In The Context
Of The Conflict Between Overlapping Of Fundamental Rights And Directive
Principles Of State Policy:
On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S.
Puttaswamy vs Union of Asian nation passed a historic judgment affirming the
constitutional right to privacy.
It declared privacy to be associate degree integral part of half III of the
Constitution of Asian nation, that lays down our basic rights, ranging from
rights relating to equality (Articles 14 to 18); freedom of speech and Article
19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and
personal liberty (Article 21) and others.
These basic rights can't be given or bumped off by law, and every one laws
and government actions should abide by them.
The Supreme Court has, however, clarified that like most other fundamental
rights, the right to privacy is not an absolute right. Subject to the
satisfaction of bound tests and benchmarks, an individual's privacy
interests will be overridden by competitive state and individual interests.
Citation: Writ Petition (Civil) No. 494 of 2012. - Bench: CJI Khehar, J.
Chelameswar, J. S A Bobde, J. Rohinton Fali Nariman, J. Dr. D Y Chandrachud, J.
Abhay Manohar Sapre, J. Sanjay Kishan Kaul, J. R K Agrawal, J. S Abdul Nazeer. -
Court: Supreme Court of India
The case was brought by 91-year old retired High Court Judge Puttaswamy against
the Union of India (the Government of India) before a nine-judge bench of the
Supreme Court which had been found out on reference from the Constitution
Bench to work out whether or not the right to privacy was secure as associate
degree freelance elementary right following conflicting selections from
alternative Supreme Court benches .
The latest case had concerned a challenge to the government's Aadhaar scheme (a
form of uniform biometrics-based identity card) which the government proposed
making mandatory for access to government services and benefits. The challenge
was created before a three-judge bench of the Supreme Court on the idea that
the theme desecrated the proper to privacy.
However, the lawyer General argued on behalf of the Union of Asian nation that
the Indian Constitution doesn't grant specific protection for the proper to
privacy. He based mostly this on observations created within the case of
M.P.Sharma v.Satish Chandra (an eight-judge bench) and Kharak Singh
v.Uttar Pradesh (a five-judge bench).
However, a future eleven-judge bench found that elementary rights weren't to be
construed as distinct, unrelated rights, thereby upholding there dissenting
view in Kharak Singh. This also formed the basis of later decisions by smaller
benches of the Supreme Court which expressly recognized the right to privacy. It
was during this context that a Constitution Bench was established and all
over that there was a requirement for a nine-judge bench to work out whether or
not there was a elementary right to privacy within the Constitution.
The Petitioner argued before the nine-judge bench that this right
was a freelance right, guaranteed by the right to life with dignity under
Article 21 of the Constitution. The Respondent submitted that the
Constitution solely recognized personal liberties which can incorporate the
right to privacy to a limited extent. The Court considered detailed arguments on
the nature of fundamental rights, constitutional interpretation and the
theoretical and philosophical bases for the right to privacy as well as the
nature of this right.
- Whether Parliament was competent to pass the Aadhar Act as a money bill?
- Does the maintenance of a record of biometric data violate the Right to
- Whether making Aadhar mandatory for getting subsidies and benefits under
section 7 violets right to Equality and dignity?
- Can the Aadhar card can be made mandatory for all citizens of India?
Arguments By The Petitioner:
- That Parliament was competent to pass the Aadhaar Act as a Money Bill
under Article 110 of the Constitution. The main aim of the act is to deliver
State subsidies and benefits, the expenditure of which falls under the
Consolidated Fund of India. Article 110(1)(c) states that a Bill is a Money
Bill if it 'contains only provisions dealing with…the custody of the
Consolidated Fund of India'. With reference to Article 110(3), concluded
that the Aadhaar Act can justifiably be passed as a Money Bill.
- That the Aadhar theme violates citizens , Right to Privacy, speech
stripped knowledge was collected within the enrolment method Aadhar Act ,
truly seeks to secure to the poor and deprived persons an opportunity to
live their life and exercise liberty the Right to Privacy is a fundamental
right for Asian Country voters underneath the Constitution of India (mostly
Article 21 and to boot underneath half III rights.)
- That the petitioner said that the section inverts the symmetry of power
between citizens and the State by giving State unlimited powers to limit
citizen rights. Phrase "subsidy benefit" under section 7 are "words of
condescension Aadhaar cannot be seen as an affirmation action law as rights
under Articles 14, 15, 16, 17 and 21 are violated by imposing preconditions
on basic entitlements. An ideal regime is one where even a beneficiary is
not made aware that he is a beneficiary to protect the person's dignity.
- That besides being unparalleled as an identification document, it was
termed as "empowering" tool as it facilitates disbursal of state subsidies
and benefits to the marginalized and disadvantaged sections of society.
Arguments By The Respondent:
That the passing of Aadhaar Act as a money bill is unconstitutional. For an act
to be passed as a money bill, it must only contain such provisions that pertain
to matters set out under Article 110(1) clauses (a) - (g) of the Constitution.
Aadhaar Act will show that it governs several other aspects relating to the
Aadhaar scheme, none of which lie within the scope of Article 110(1).
Anirudh vs UT Of Chandigarh And Ors on 2 February, 20171
The petitioner belongs to the poor strata of society and lives below poverty
line. His case is that he used to reside in Jhuggi No.428/2, Block B, Colony
No.5 in UT, Chandigarh. His claim is duly supported by the voter list and Aadhar
Card (Annexures P-1 and P-2), respectively. The Chandigarh Administration took a
policy decision to remove all the slums/Jhuggies by allotting alternative sites,
namely, `one room tenement ; to the Jhuggi dwellers under the Scheme called as `Chandigarh
Small Flats Scheme 2006'.
A bio-metric survey was conducted to identify the persons residing in the
Jhuggies and when such bio- metric survey was conducted, the petitioner was
found residing at the above stated 1 of 3 Jhuggi. His name is duly shown at
Folio No.4478. It further appears that brother of the petitioner, namely, Dukh
Ram, also used to stay with him. Both, the petitioner and his brother are
At the time when an official representative came to Jhuggi for filling up the
application form, the petitioner was not present, hence the name of his brother
was mentioned in the application form. The resultant effect was that though in
the bio-metric survey the petitioner was found residing in the above mentioned
Jhuggi, but the application was submitted in the name of his brother.
The `mistake' resulted into denial of `one room tenements ; to the petitioner as
well as his brother.  The aggrieved petitioner approached Permanent Lok
Adalat, Chandigarh, through the aegis of UT, Legal Services Authority. The
Permanent Lok Adalat examined the claim of petitioner and found it worth
acceptance. A direction was issued to the Chandigarh Administration to issue
fresh application form in the name of the petitioner and process his case.
1 AIR 1994 SC 2737
Aadhaar helps the disadvantaged sections lead a dignified life by assuring
better targeting of subsidies and state benefits and helps in effective
realization of a range of socio-economic rights. He said that there is a need
for balance between two conceptions of dignity – one based on the right to
personal autonomy and other based on right to live a dignified life. He held
that the Aadhaar Act, as a whole, maintains dignity, however he did strike down
certain provisions on the grounds that they violate dignity.
The two facets of dignity as stated by Justice Sikri:
- Individual dignity predicated on freedom of choice and autonomy
- Community approach to dignity, which accounts for "common good" and
Section 7 does not declare expenditure to be incurred by the Consolidated fund
of India, but only that the Aadhaar be made mandatory where such expenditure is
Aadhaar is unique and more fool proof than other identification documents (PAN,
Ration Card). This is because Aadhaar Card is issued on basis of an individual's
biometric information . It was emphasised that unlike other identification
cards, the Aadhaar Card "cannot" be duplicated. He observed that the Aadhaar
Card is rightly labeled "Unique Identification".
The judgment, spanning 547 pages, contains six opinions nine judges of the Court
producing what must be a contender for the longest reasoned judgment ever
produced by a court. The problem for the Petitioners was that the Indian
Constitution does not contain an explicit privacy right. Nevertheless, the
Indian Constitution is a living instrument.
The Courts have sought-after to present impact to the "values" that the
Constitution it contains by decoding categorical elementary rights protections
as containing a large vary of alternative rights.
The question of whether or not or not privacy could be
a elementary right initial arose in 2015 before a three-judge bench of the
Supreme Court considering the constitutional challenge to the Aadhaar framework.
The Attorney General had then argued that although a number of Supreme Court
decisions had recognised the right to privacy, Part III of the Constitution does
not guarantee such a elementary right since larger benches of the Court in M.P
Sharma (8 judge bench) and Kharak Singh (6 judge bench), had refused to simply
accept that the proper to privacy was constitutionally protected. Consequently,
this bench referred the matter to a five-judge bench to make sure institutional
integrity and judicial discipline.
Thereafter, the five-judge bench referred the constitutional question to an
excellent larger bench of 9 judges to pronounce with authority on
the standing of the correct to privacy.
The crucial provision for this purpose is Article twenty one that provides that
"No person shall be bereft of his life or personal liberty except per procedure
established by law"
The bench has overruled its decisions in M.P. Sharma v Satish Chandra, District
Magistrate, Delhi (1954), rendered by a bench of eight judges and, in Kharak
Singh v State of Uttar Pradesh (1962), rendered by a bench of six
judges, that contained observations that the Indian
constitution doesn't specifically defend the correct to privacy.
In a vital section of the joint judgment headed Essential Nature of Privacy, Chandrachud J analyses the idea of privacy as being based on autonomy and as an
important side of dignity "Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and freedom which the
Constitution has recognised.
Privacy is the ultimate expression of the sanctity
of the individual. It is a constitutional value which straddles across the
spectrum of fundamental rights and protects for the individual a zone of choice
The conclusions area unit kicked off at pages 260-265 of the joint judgment.
It is control that privacy may be a constitutionally protected
right that emerges, primarily, from Article twenty one of the Constitution.
This does not Associate in nursing absolute right however associates in nursing
interference should meet the threefold demand of 1. Legality ,2. The requirement
for a legitimate aim , 3. Quotient .
It is additionally noted that, as informational privacy may be a side of the
proper to privacy the government can have to be compelled to place in into a
strong regime for knowledge protection.
Two other important points are dealt with in the joint judgment.
Firstly, it emphasises the actual fact that sexual orientation is a
vital attribute of privacy therefore casting doubt on the case of Suresh Kumar Koushal v.
Naz Foundation (2014) which upheld section 377 of the Indian Penal Code, which
effectively criminalizes same-sex relationships between consenting adults. A
reconsideration of Suresh Koushal is pending before a constitution bench of the
Secondly, Chandrachud J overturns the judgment of his father (Chandrachud
CJ) within the ill-famed case of ADM Jabalpur v Shivakant Shukla
(1976) that command that basic rights may be suspended during the Emergency
Though the ADM Jabalpur judgment was nullified by 44th constitutional amendment
it has now finally been put to rest. In his concurring judgment Sanjay Kishan
Kaul J commented:
The ADM Jabalpur case … was an aberration in the constitutional
jurisprudence of our country and the desirability of burying the majority
opinion 10 fathom deep, with no chance of resurrection.
By its order the Court dominated that the correct to privacy is protected as a
part of the correct to life and basic liberty beneath Article twenty one. The
case was referred back to the first bench 3 judges for call on the benefit.
On Striking /Reading Down Specific Provision While upholding the Aadhaar Act, he
struck down and read down certain provisions
Section 2(d) read down to not allow collection of metadata. On Aadhaar and
Section 7 Benefits, Subsidies Justice Sikri upheld Section 7 which made Aadhaar
mandatory for availing State subsidies, benefits and services. But, he held that
Aadhaar could not be made mandatory by CBSE, NEET, UGC as they are neither
services nor benefits by the State.
Similarly, he held that Aadhaar could not be
made mandatory for children under the Sarva Siksha Scheme, as elementary
education is not a state benefit but an entitlement. Section 33(1) of the Act
which prohibited disclosure of Aadhaar information except by order of a court,
read down by allowing an individual to appeal to disclosure of Aadhaar
information. Section 33(2) which allowed disclosure of Aadhaar information in
interest of national security, struck down.
Section 47, which allows for
cognizance of an offence only when the UIDAI authority or any makes complaint
authorized person partially struck down. Recommended an amendment so that
individual victim can file complaint. Section 57, read down the part of Section
57, which enabled body corporates and individuals to seek Aadhaar
authentication, struck down. Regulation 27 of Aadhaar (Authentication
Regulations) 2016, which allowed retention of data for 5 years is struck down.
The court said that retention of data beyond six months is impermissible.
A 4:1 majority upheld the Aadhaar ( Targeted Delivery of Financial and Other
Subsidies , benefits and Services ) Act . While it ruled that the Act is
constitutional , it struck down individual sections of the Act as
unconstitutional . The Judges sitting in the bench were Justice D .Y.
CHANDRACHUD, Justice ARJAN KUMAR SIKRI , Justice ASHOK BHUSHAN , Justice AJAY
MANIKRAO , Justice DIPAK MISRA .
J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J.
Nazeer): this opinion declared that privacy wasn't given entirely once a
personal is within the public sphere. Further, it found that the proper to
privacy enclosed the negative right against State interference, as within
the case of legislating of sexual practice, additionally because the positive
right to be protected by the State. On this basis, the Judges control that there
was a necessity to introduce a knowledge protection regime in Asian country.
J. Chelameswar: in his opinion, the decide aforementioned that the proper to
privacy inexplicit a right to refuse medical treatment, a right
against feeding, the proper to consume beef and the right to show symbols of
faith in one's personal look etc.
J. Bobde: the decide ascertained that consent was essential for distribution of
inherently personal information likehealth records.
JNariman: during this judgement, the choose classified the sides of privacy into
non-interference with the individual body, protection of private data and
autonomy over personal selections.
J. Sapre: the decide same that, additionally to its existence as associate
degree freelance right, the proper to privacy enclosed associate
degree individual's rights to freedom of expression and movement and was
essential to satisfy the constitutional aims of liberty and fraternity which
ensured the dignity of the individual.
J. Kaul: the decide mentioned the correct to privacy with relation to protection
of informational privacy and therefore the right to preserve personal name.
He same that the law should offer for knowledge protection and regulate national
security exceptions that affordinterception of knowledge by the State.
The Court also recognized that the right was not absolute but allowed for
restriction where this was provided by law, corresponded to a legitimate aim of
the State and was proportionate to the objective it sought to achieve.
Implications And Analysis Of Judgement Of The Aadhar Case (critical analysis):
A 5-member constitution bench of the Supreme Court led by Chief Justice Dipak
Misra ruled that Aadhaar is mandatory for filing of income tax returns (ITR) and
allotment of Permanent Account Number (PAN). So if you are a tax payer or want a
PAN card then you cannot run away from Aadhaar.
Most commercial banks, payments bank and e-wallet companies like Paytm had so
far been insisting customers to get their KYC done using Aadhaar card and had
warned account holders that their services are blocked just in case of failure
Now they cannot seek Aadhaar data You would still got to fulfil different KYC
criteria however Aadhaar authentication for bank accounts
is currently a factor of the past.
To buy a new SIM card, your telecom service provider cannot seek Aadhaar
details from you. Just give alternative KYC documents like elector ID card,
driving license, etc to get a new SIM card. Justice Chandrachud has favoured
deletion of consumers' Aadhaar information by mobile service suppliers.
Aadhaar card is however must for availing facilities of welfare schemes and
government subsidies as it empowers the poor and marginalised.
The Supreme Court has made exception for children saying that no child can be
denied benefits of any scheme if he or she doesn't have Aadhaar card.
The apex court has struck down Section 57 of the Aadhaar Act as
"unconstitutional". This means that no company or private entity can seek
Aadhaar identification from you.
The constitution bench of the top court has also struck down the national
security exception under the Aadhaar Act. This will indirectly ensure greater
privacy of individual's Aadhaar data while restricting the government
accessibility to it.
Justice Sikri, while reading out the Supreme Court judgement, said Aadhaar would
not lead to a surveillance state because the data was kept in silos. The
program's invasion of privacy was minimal and served a much larger public
interest by providing identities to India's poor and marginalized citizens,
After going through the Aadhaar scheme and structure, it is difficult to profile
a person on the basis of minimal biometric information collected, the court
While upholding the constitutional validity of Aadhaar theme , The Supreme court
has dominated that Aadhaar Act doesn't violate your right to privacy once you
conform to share biometric information . one still needs Aadhaar for numerous
alternative function together with ITR filling and PAN.
The Government has welcome the Supreme Court ruling with Minister Arun Jaitley
locution that the utilization of Aadhaar has helped the government save Rs.
90000/- ,large integer in a year through targeting of beneficiaries and plugging
This call has been recognised as being of nice legal and political significance.
The Opposition Congress party leader said that it "will rank among the most
important judgments delivered by the Supreme Court since the advent of the
constitution of India." The Hindustan Times commented that "The country could
not have got a better gift from the judiciary for its 70th year of
independence". The case has been seen as a serious reversal for the Modi
Government. A placing feature of the joint judgment is that
the elaborate treatment of problems with digital privacy that ar of
accelerating vital each in India and internationally.
The future of the Aadhaar programme has been placed in doubt and, in the light
of the comments of the majority there is a strong possibility that the Supreme
Court will now strike down legislation criminalising same-sex relationships. The
joint judgment makes it clear that the Indian Government is currently beneath
associate degree obligation to determine a knowledge protection regime to guard
the privacy of the individual. The constitutional right to privacy will
currently be accustomed challenge to bans on beef and alcohol consumption in
several Indian states.
The decision has been welcomed by Indian and international commentators, it puts
the right to privacy at the heart of constitutional debate in the world's
largest democracy and is likely to provide assistance and inspiration for
privacy campaigners around the world.
The Court's rendition of the correct to privacy has paved the method for a
large vary of claims. whereas the precise boundaries of the
correct can still develop on a case by case basis, it's clear that privacy
claims can usually got to be weighed
against different competitor interests. within the absence of an
outlined hierarchy among the assorted rights bonded beneath half III of the
Constitution, the choice in every case can vary supported facts at hand and also
the judicial interpretation. for example, will the dignity of a wife, which is
central to her privacy and liberty, be infringed by a law on marital
status rape thus on defend the "private affairs" of the family.
In fact, just last week, a PIL was filed before the Delhi High Court that the
restitution of conjugal rights provision in the Hindu Marriage Act and Special
Marriage Act is violative of the right to privacy.
- Aashima Raj Trivedi, law student and
- Sanidhy Ratna Gurung, law student.