# JUSTICE K. S. PUTTASWAMY (RETD.) & ANR v. UNION OF INDIA & ORS

- **Citation:** [2018] 8 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-09-26
- **Bench:** Dipak Misra, A. K. Sikri, A. M. Khanwilkar, Dr. D. Y. Chandrachud, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/justice-k-s-puttaswamy-retd-anr-v-union-of-india-ors-33709
- **Pages:** 1076

## Headnote

Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 - Whether the Aadhaar Act
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
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
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
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,
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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[2018] 8 S.C.R.
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,
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
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,
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
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,
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 g

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JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA
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[2018] 8 S.C.R. 1
JUSTICE K. S. PUTTASWAMY (RETD.) & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 494 of 2012)
SEPTEMBER 26, 2018
 [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
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
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
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
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,
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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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,
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
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,
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
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,
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
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
Aadhaar (Targeted Delivery of Financial and other Subsidies,
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
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
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
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
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
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,
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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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
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
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'
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
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
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
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
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 is statutorily barred
from collecting, keeping or maintaining any information about the
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,
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)
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%
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)
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
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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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
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
- 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 -
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
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
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,
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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Aadhaar (Targeted Delivery of Financial and other subsidies,
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)
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
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)
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)
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
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
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
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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.
(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 -
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)
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:
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
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
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
individual and such body corporate or person, would impinge upon
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
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,
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
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,
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,
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
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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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. -
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
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
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
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
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,
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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educational institutions - Email IDs and phone numbers are also
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,
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,
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
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 -
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
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
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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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
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
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
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
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
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
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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Biometric information - Right to privacy. (Per Ashok Bhushan, J.)
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
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
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
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
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
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
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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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.)
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
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
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
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,
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
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
not deserves to be struck down - Aadhaar (Sharing of Information)
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
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 subsection (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, 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
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,
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
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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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
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,
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 -
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
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
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
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.