JUSTICE K. S. PUTTASWAMY (RETD.) VS UNION OF INDIA ( AADHAAR JUDGMENT ) : CASE SUMMARY
The Supreme Court in Justice K. S. Puttaswamy (Retd.) Vs. Union of India (Aadhaar Judgment) ( 2018) 8 SCR 1 has held that Adhaar Act does not create a surveillance state or violate Right to Privacy.
Several Writ Petitions had been filed in the Supreme Court challenging the vires of the Adhaar Act including that of Justice Puttaswamy (Retd). The Supreme Court determined following important issues.
(i) Whether Aadhaar Project creates surveillance state ?
The Supreme Court held that Aadhar project does not create a surveillance state. During enrollment minimum biometric data i.e. iris and fingerprint is captured. The authority does not collect purpose, location or detail of the transaction. The information collected remain in silos. There is no merging of silos. There are sufficient authentication security measures.
The Supreme Court directed that authentication records are not to be kept for more than six months. An individual whose data is to be released has to be afforded an opportunity of hearing. Section 33 (2) of the Act was struck down. Section 57 of the Aadhar Act which enabled body corporate and individual to seek authentication was also struck down.
(ii) Whether Aadhaar Act violates right to privacy and is unconstitutional on this ground ?
The Supreme Court held that all matters pertaining to and individual do not form part of right to privacy. Only those matters over which there would be reasonable expectation of privacy are protected under Article 21.
Adhaar Scheme is backed by statute. The objective of the Act is to ensure social benefit for deserving community. Adhaar Act is aimed at offering subsidies, benefits and subsidies to marginalized section of society. This is an aspect of social justice which is an obligation under Directive Principles of State Policy under Part IV of the Constitution.
The Court observed that Aadhaar Act also meets the test of proportionality. The Court was of the view that Adhaar Act balances the right to privacy of individuals with that of social justice to marginalized sections of society.
The Court also gave directions to the effect that no deserving person will be denied the benefit of scheme on failure of authentication. Benefits and services under Section 7 are those which have color of some kind of subsidies. CBSE, NEET, UGC, JEE etc can not make Aadhaar mandatory.
(iii) Whether Children can be brought within the sweep of Section 7 and 8 of the Aadhaar Act ?
The Supreme Court held that children can be brought within the sweep of Section 7 and 8 with consent of Parents. On attaining majority children will have option to exit from Aadhar Project. In case of admissions to school Adhaar will not be compulsory as it is neither a service not a subsidy.
(iv) Whether Aadhaar Bill could have been passed as Money Bill ?
The Supreme Court held that Aadhaar Bill has been validly passed as Money Bill as it has several elements of money bill. 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. Such subsidy, benefit or service has to be paid from consolidated fund of India. Section 7 is core provision of Aadhar Act and it satisfies conditions of Article 110.
(v) Whether Section 139 AA of the Income Tax Act, 1961 is violative of Right to Privacy and therefore unconstitutional ?
The Supreme Court applying the tests (i) the existence of law (ii) a legitimate state interest and (iii) test of proportionality held that Section 139 AA is not unconstitutional.
(vi) Whether Rule 9 of the Prevention of Money Laundering (Maintenance of Records ) Rules, 2005 and notifications issued thereunder for linking of Aadhaar with Bank Account is unconstitutional ?
The Supreme Court held that the provision in present form does not pass the proportionality test and is violative of Right to Privacy, which extends to banking details of a person. The provision stipulates that in case of non-linking of Aadhar with Bank Account, holder of the Bank Account will not be able to operate the Bank Account, which amounts to deprivation of property.
(vi) Whether circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile with Aadhaar is illegal and unconstitutional ?
The Supreme Court held the circular unconstitutional as it was not backed by any law.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.