Justice K.S. Puttaswamy (Retd) vs Union of India, 2018: Case Comment

Case comment on Justice K.S. Puttaswamy (Retd) vs Union of India, 2018

Author: Vaishali Malhotra, Kurukshetra University.

Justice K.S. Puttaswamy (Retd) vs Union of India,2018

Writ Petition  (Civil ) NO 494 OF 2012

Bench: [ K Kaul], [ D Chandrachud], [ K Agrawal], [ S Khehar], [ A Bobde], [ A Nazeer], [ D Chandrachud], [ K Agrawal], [ S Khehar]

Parties : Justice K.S. Puttaswamy ( Petitioner)

Union of India ( Respondent )

Date of Decision:24 Aug , 2018

Issues of this case

The issues raising out in the case are as follows:-

• Whether the Aadhaar Project creates or has the tendency to create a surveillance state and is, thus, unconstitutional on this ground?
• What is the magnitude of protection that needs to be accorded to the collection, storage, and usage of biometric data?
• Whether the Aadhaar Act and Rules provide such protection, including in respect of data minimization, purpose limitation, the time period for data retention and data protection and security?
• Whether the Aadhaar Act violates the right to privacy and is unconstitutional on this ground? ( in the context of Sections 7 and 8 of the Aadhaar Act.)
• Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?
• Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality:
• Sections 2(c) and 2(d) read with Section 32
• Section 2(h) read with Section 10 of CIDR
• Section 2(l) read with Regulation 23
• Section 2(v), Section 3,Section 5, Section 6, Section 8, Section 9
• Sections 11 to 23
• Sections 23 and 54
• Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
• Section 29, Section 33, Section 47, Section 48, Section 57,  Section 59
• Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust?
•  Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
• Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?
• Whether Rule 9(a)(17) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are unconstitutional?

• Whether Circular dated March 23, 2017, issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional?
• Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?

Facts of this case

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

Contentions of both the parties

• On behalf of the petitioner

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

• On behalf of the respondent

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

Applied rule of law, sections, and articles

• Article 21 ( The Constitution of India, 1949)
• Article 14 ( The Constitution of India, 1949)
• Article 19 ( The Constitution of India, 1949)
• Article 8 ( The Constitution of India, 1949)
• Article 110( The Constitution of India, 1949)
• Section 7   ( Income Tax Act, 1955)
• Section  2 ( Income Tax Act , 1955)
• Section 57   ( Income Tax Act , 1955)
• Section 59   ( Income Tax Act , 1955)
• Section 29   ( Income Tax Act , 1955)

Judgement of the case

The Supreme Court upheld the validity of the Aadhar scheme that proper measures should be taken to protect the data. Along with this, the apex court held that there are fundamental differences between the Aadhaar scheme and another sort of identification proof. Aadhar Card cannot be duplicated in any sense and therefore it is a Unique Identification system to empower the marginalized sections of the society by giving them a special identity.

Case Laws referred

• Kharak Singh v. The State of U.P. (1962)
• Govind v. State of M.P. (1975). 
• R. Rajagopal v. Union of India (1994)
• People’s Union for Civil Liberties v. Union of India (1996)
• District Registrar and Collector, Hyderabad and another v. Canara Bank and another (2004).
• Selvi and others v.State of Karnataka and others (2010)
• Unique Identification Authority of India & Anr v.Central Bureau of Investigation(2014)
  
  

Overrules previous judgments

• Kharak Singh vs the State of UP, 1962 (1) SCR 332
• M.P Sharma vs Union of India, 1950 SCR 1077 

In both, the cases court held that there is no fundamental right to privacy under the Indian Constitution.

Conclusion

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