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TMI Blog2018 (9) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt Petition (Civil) No. 608 of 2016 in Writ Petition (Civil) No. 494 of 2012, Writ Petition (Civil) No. 797 of 2016, Contempt Petition (Civil) No. 844 of 2017 in Writ Petition (Civil) Nos. 494 of 2012, 342, 372, 841, 1058, 966, 1014, 1002, 1056 of 2017 and Contempt Petition (Civil) No. 34 of 2018 in Writ Petition (Civil) No. 1014 of 2017 Dipak Misra, C.J.I., A.M. Khanwilkar, A.K. Sikri, Ashok Bhushan and Dr. D.Y. Chandrachud, JJ. For Appearing Parties: K.V. Venugopal, AG, Tushar Mehta, ASG, Anil Grover, AAG, Gopal Subramanium, Meenakshi Arora, K.V. Viswanathan, Shyam Divan, Chander Uday Singh, P. Chidambaram, Anand Grover, Arvind P. Datar, Rakesh Dwivedi, Jayant Bhushan, V. Giri, Sajan Poovayya, P.V. Surendranath, Neeraj Kishan Kaul, Sr. Advs., Jaideep Singh, Anirban Sen, Gopal Thiruman, Pawan Bhushan, Jayavardhan Singh, Vaidruti Mishra, Chitrangda Rastravara, Vishwajit Singh, Hitesh Saini, Vivek Raja, Anish Kumar Gupta, Avdhesh Kumar Singh, Harsha, Rita Gupta, Deepshikha Bharati, Geetha Kovilan, Rahul Narayan, Ananya Ghosh, Bhabna Das, Vrinda Bhandari, Gautam Bhatia, N. Sai Vinod, Advs. for Shadan Farasat, Adv., Pratap Venugopal, Surekha Raman, Prasanna S., Udayaditya Banerje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogy Scaria, Adv. for Meharia & Co., M.P. Vinod, Nina Gupta, Shereen Shukla, Mudit Sharma, Harsh Kaushik, Advs. for Khaitan & Co., K.R. Sasiprabhu, Chanchal Kumar Ganguli, Nishe Rajen Shonker, Anu K. Joy, Manav Vohra, Krishna Dev J., Mohammed Sadique T.A., Svadha Shankar, Amith Krishnan, Anwar Alim, S. Joseph Aristotle, Priya Aristotle, Javed-Ur-Rehman, Aditya Bhat, Karan Bharihoke, Bhupesh Narula, K.V. Jagdishvaran, G. Indira, K. Enatoli Sema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Leishangthem Roshmani KH, Maibam Babina, Ajay Bansal, Kuldeep Singh, Gaurav Yadav, Mahesh Agarwal, Priyadarshi Banerjee, Pratibhanu S. Kharola, Saransh Kumar, Saransh Jain, Madhavam Sharma, Meka Venkata Rama Krishna, Vivek Jain, Advs. for E.C. Agrawala, Adv., Resmitha R. Chandran, Lekha Sudhakaran, Nipun Saxena, Namit Saxena, Devanshu Sajlan, Aditya P. Arora, Pallavi Pratap, Bina Madhavan, Shreyasi Kunwar, Advs. for Lawyer S. Knit & Co., Sriram P., Khushbu Jain, Vishnu Shankar M.S., Athira G. Nair, Rahul Matthan, Syed Jafar Alam, Shivani Khandekar, Thomas J. Vallianeth, Samar Kachwaha, B. Vivekananda, Ashok Mathur, R. Sudhinder, Saumya Mehrotra, Amrita Sarkar, S. Mukherjee, Manoj Kumar Mishr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 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 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 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 Aa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. In the writ petition the scheme has primarily been challenged on the ground that it violates fundamental rights of the innumerable citizens of India, 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 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 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 Information Tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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: (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 mechanism that would 'own' the database and be responsible for its maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia'. 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'. 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/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: (i) Report of the Task Force on an Aadhaar-Enabled Unified Payment Infrastructure for the direct transfer of subsidies on Kerosene, LPG and Fertilizer. (ii) In March 2012, Fingerprint Authentication Report was submitted to UIDAI. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts 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 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 Ors. 1954 SCR 1077. 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han the PDS Scheme and in particular for the purpose of distribution of 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 shall not be used for any other purpose, save as above, except 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikes 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. " 21. Likewise, in Writ Petition (Civil) No. 1002 of 2017 titled Dr. Kalyan Menon Sen v. Union of India and Ors. 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 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 and Ors. (2011) 14 SCC 331, wherein various directions were given to ensure effective implementation of the PDS Scheme and in the process to also 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming 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 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 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 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 a resolution of the Government of India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identiality 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. " 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: "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." 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 an individual Under Sub-section (3) of Section 3; (b) "Aadhaar number holder" means an individual wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits, subsidies or services provided to, or availed by, any individual under any programme; xx xx xx (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 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 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 expenditu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Central Government establishing the Authority. Other provisions in this Chapter deal with the composition of the Authority, qualifications for appointment of the Chairperson and Members of Authority; term of their office and their removal; and restrictions on their employment after cessation of office. 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 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f submitting any identity information for authentication; or (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 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 "sensitive personal data or information", and the provisions 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-- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y out the provisions of the Act generally as well as the specific 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. 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 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 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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-- (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). 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. (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 Aadh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 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. (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. (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. (5) A requesting entity shall ensure that encryption of PID Block takes place at the time of capture on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lock; (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. 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 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 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) implementing controls to detect and protect against virus/malwares; (e) a change management process to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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; (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 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 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 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 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 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and Anr. v. Union of India and Ors. (2017) 10 SCC 1. 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 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 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 info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any data protection at any level. 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 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 ecosystem 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 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 rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udit and traceability as well as fraud detection. 50. It was explained that the security and data privacy is ensured in the following way: (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 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). 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. (v) The original biometric images of fingerprints, iris and face are archived and stored offline. Hence, they cannot be accessed through an online network. (vi) The biometric system provides high accuracy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mobile number). This was the reason for multi-modal enrolment and authentication being selected for use in Aadhaar. Only in an unlikely scenario where both iris and fingerprint cannot 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olments 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 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 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 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 do not pertain to the number of unique individuals who have been denied Aadhaar enrolment resulting in no Aadhaar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 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 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 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. Those whose enrolments have been rejected for any reason an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. 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. 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 Aadhaar is to issue a unique identity for the residents of India. Hence, each enro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lications may 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 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 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 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) Pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity information (except core biometric) may be provided to an agency only with my consent during 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 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;" 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 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, frauds are managed, they may store additional information as per their requirement under their respective laws to secure their system. Section 32(3) of the Aadhaar 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: (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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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 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 obtain such unique identification proof, it is also to empower marginalised Section of the society, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 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 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, 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). (iii) Elements of the Aadhaar project or programme that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re every move of the citizen is constantly tracked and recorded by the 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 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 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. (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 enro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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. (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 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. (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. 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' 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 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: 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. Children: 70. As per the Petitioners, there is no justificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 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. 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 Court has liberally accepted the good practices, Rules of interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cited by this Court from time to time. Influence of U.S. Constitutionalism, tempered by the wish to preserve India's own characteristics, while interpreting chapter relating to fundamental rights as well as power of judicial review is also discernible. A critical analysis of the various judgments of this Court, where foreign precedents are cited Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore (2010), formulates four typologies of use, namely: (a) Where the court relies on foreign precedents for guidance on 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; (c) To distinguish the country's context from the foreign one Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr., 1959 Supp (1) SCR 528; (d) To 'read' in the Constitution implied or unenumerated rights. Romesh Thappar v. State of Madras, 1950 SCR 594 It can be said that though this Court has been liberally relying upon the judgments of the constitutional courts of other countries, particularly when it comes to human rights disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Towne v. Eisner, 245 US 418, 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 Australia, (1936) AC 578 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 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 problems of this country and on that basis to accept a particular norm, or for that matter, to formulate a constitutional norm which is relevant in 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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; (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. (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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 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 and Anr. v. Shri Ranganatha Reddy and Anr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rule of Law. Our Constitution 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 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 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: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 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: "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 commencement of this Constitution shall continue in force 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 of the Constitution by courts. Such a power is recognised by this Court in Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment cannot be struck down on the ground that court 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.' 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 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 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 cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rimary legislation enacted by Parliament or the State Legislatures. However, while undertaking this exercise of judicial review, the 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge 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 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 fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In 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 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in E.P. Royappa v. State of T.N., namely, that: (SCC p. 38, para 85) 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 according to political logic and constitutional law and is therefore 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 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." 69. This was further clarified in A.L. Kalra v. Project and Equipment Corporation, following Royappa and holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt 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 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 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 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 submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State. They inhere in human beings because they are human. They exist equally in the 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. 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 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. 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.: 521. In the Indian context, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India can add nothing." Seervai, in his monumental treatise Constitutional Law of India had this to say: "53. If in this Appendix the dissenting 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 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 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 reinforced by his reference to the mass murders of millions of Jew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 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.). 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 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 an aspect of such right a part of the fundamental rights did not have the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al relationships such as with doctors and lawyers which 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 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.] xx xx xx 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 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 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 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. xx xx xx 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 autono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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. 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 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 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.: 407. Undoubtedly, privacy exists, as the foregoing demonstrates, as a verifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing being supposed to be of full age, and not forced or deceived. No society in which these liberties are not, on the whole, 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 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. 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 Mill, On Liberty and Other Essays (Stefan Collini Edition, 1989) (1859)] (emphasis supplied) 409. The first and natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed 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 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 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 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 deprivat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination 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 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.: 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: 618.1. In Robertson and Nicol on Media Law [Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law, 5th Edn., p. 265.] it was observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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." 619. Privacy is also the key to freedom of thought. A person has 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.: 372. History abounds with examples of attempts by Governments to shape th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 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 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 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 individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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, AIR 1983 AP 356. However, this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96: 1983 SCC (Cri) 353]. 10. The right against public hanging. Attorney General of 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]. 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, 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-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 and to buy goods and services. Individuals browse the web in 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 tradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he possible uses of information and resulting harms. Such a situation poses a challenge for courts who are effectively asked 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 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 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 as having volunteered data but their activities of use and engagement resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tened public safety concerns. One such technique being adopted by the States is "profiling". 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 the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] 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 [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 in discrimination based on religion, ethnicity and caste. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and hence, is valuable information. This is the age of "big data". The 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 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. 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 democracy can afford. 592. Thus, there is an unprecedented need for Regulation regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 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. 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, "Reconceptualiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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) 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 the fulfillment 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 life or personal liberty except in accordance with the procedure 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 z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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. 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 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 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 the individual it could legitimately assert a valid Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t present is the rationality review expressed in Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 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.: 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 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 Court for such legislation or subordinate legislation to pass muster under the said article. Each of the tests evolved by this Court, qua leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very simply the lack of any reasoning.]; limitation as per the express provisions of Article 19; a just, fair and reasonable basis (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 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 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 entirely traceable to rights other than Article 21 is bleak. Without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormational privacy; and (iii) privacy of choice. 83. As succinctly put by Nariman, J. first aspect involves the person 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 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 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 intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis. 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, Understanding Privacy Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard University Press, 2008, 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 '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 informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions. 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation. 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 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 the individual. This is evident from the emphasis in the European 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: "421. Shri Rakesh Dwivedi, appearing for the State of Gujarat, while referring to several j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 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 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 India (2018) 5 SCC 1, the concept of human dignity has been explained in much detail See paras 72-79 of the judgmen. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1972, the United States Supreme Court kept in mind this aspect in the case of Furman v. Georgia 408 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 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 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 Supreme Court have gone to the extent of holding that capital punishment con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrined 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 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 expressed in the three ways: first, the value of human dignity 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 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:" "The first role of human dignity as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (2018) 5 SCC 1 pertaining to passive euthanasia. Though this right was earlier recognised in Aruna Ramachandra Shanbaug v. Union of India and Ors. (2011) 4 SCC 454, a totally new dimension was given to this right, based on freedom of choice which is to be given to an individual accepting his dignity. There were four concurring opinions. In one of the opinions Rendered by Dipak Misra, CJI, 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the fundamental perception of a thinker about the respect that life commands. The reverence of life is insegregably associated with the dignity 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". 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 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 from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um 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 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 opinion Rendered by A.K. Sikri, J., four facets of euthanasia were 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: "292. Aharon Barak, former Chief Justice of the Supreme Court of Israel, attributes two roles to the concept of human dign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only define the basis but the conditions for human dignity. Dworkin went on to develop and expand these principles in his book, Justice for Hedgehogs (2011) Harvard University Press, 2011 297. When speaking of rights, it is impossible to envisage it without dignity. In his pioneering and all-inclusive Justice for Hedgehogs, 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 success" in one's own life and for creating that life "through a coherent narrative" that one has chosen21. According to Dworkin, these principles form the fundamental criteria supervising what we should do in order to live well.22 They further explicate the rights that individuals have against their political community,23 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring '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 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 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. 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." 104. Historically, a transition has taken place into the idea of dignity by transforming the amalgam of theological approach (m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice. 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'. 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'. 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 following discussion: "103 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h one finds statements about dignity of humans as human beings on account of the human being the 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. 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 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 (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 Philoso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 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."). The intrinsic value of all individuals results in two basic postulates: anti-utilitarian and anti-authoritarian. The former 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 "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 necessities, such as food, water, clothing, and shelter. The existential minimum, therefore, is the core content of social and eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 conferment of economic benefits. Precisely, this very exercise of balancing is undertaken by the Court in resolving the complex issues 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: (a) the action must be sanctioned by law; (b) the proposed action must be necessary in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation 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 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, 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable, 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 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 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 public. (3) In order to judge the reasonableness of the restrictions, no 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012).. 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 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 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 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 goa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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 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 Germ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 can be taken care of by avoiding 'ad-hoc balancing' and instead proceeding on some 'bright-line rules' i.e. by doing the act of balancing 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 the test to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 127. After setting the tone of the case, it is now time to specify 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 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? (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} (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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 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 (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 failed or was successful, reason for such failure, requesting entities' Internet Protocol (IP) address, date and time of authentication, device ID and its unique ID of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to establish that surveillance causes interference with right to privacy, life and liberty. From Kharak Singh v. State of U.P. (1964) 1 SCR 332, 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: 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 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 wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y apprehension, subject of course to the law of social control. The Petitioner under the shadow of surveillance is certainly deprived of this 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 and Anr. v. Canara Bank and Ors. (2005) 1 SCC 496, 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 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: "The A.P. amendment permits in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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. 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 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"). 138. The judgment of the ECtHR in Zakharov v. Russia35 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 without prior judicial authorisation, under the prevailing national law. The Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urveillance 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 discretion conferred on the competent authorities and the manner 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 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. 141. For establishing if the measures were "necessary in a democratic society" in pursuit of a legitimate aim, the Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantive 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 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 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 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 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 Conduct contains specific directions for following the confidentiality, privacy and security protocols and submission of periodic reports of enrolment. Not only there are direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 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 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 Sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction 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. (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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entication 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 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 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 plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 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 entirely new industries, so here is an old industry that Israel was 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 databas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, 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. Explanation. -For the purposes of this section,- (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 secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the principles for data protection that India adheres to, inter alia include: (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. (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. (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. (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 recipient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) EUGDPR (European Union General Data Protection Regulation) 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) 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 right to informational privacy. It deals with all kinds of processing of personal data while delineating rights of data subjects and obligations 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); (ii) the personal data must be collected for specified, explicit, and legitimate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f America have laws regulating collection and use of biometric information. Illinois has passed 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 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. (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. observed that with the increasing ubiquity of electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le dealing with biometric data. The first set of cases cited by the Petitioners are cases from European Human Rights Courts. 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 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 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 Marper38. In this case, the storing of DNA profiles and cellular samples of any person arrested in the United Kingdom was challenged before the ECtHR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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: "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 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 obviate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular persons likely to be involved. (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 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. (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 within the European Union. 182. In Tele 2 Sverige AB v. Post-och telestyrelsen40, 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 (n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 means of appropriate technical and organisational measures. In 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 BVerfG 2.03. 2010, 1 BvR 256 / 08 , 1 BvR 263 / 08 , 1 BvR 586 / 08, the German Constitutional Court rendered on March 02, 2010 a decision by which provisions of the data retention 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 Commissioner [2016] 2 W.L.R. 873, the CJEU struck down the transatlantic US-EU Safe Harbor agreement that enabled companies to transfer data from Europe to the United States on the ground that there was not an adequate l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship, 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 provides that Regulations cannot include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. Thus, sensitive information specifically stand excluded. 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. 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) pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et again, there may be 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 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 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 the Aadhaar (Authentication) Regulations, 2016 is too long a period. We may repro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, surrounding 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 under the Aadhaar Act refers to only process meta data. In support, he had referred to Section 2(d) of the Aadhaar Act which defines '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 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 any other (new) purpose. Definition of "benefit" (Section 2(f)) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for authentication shall be informed of the nature and the use of the information that may be shared 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. Insofar as Sections 2(f), (w) and (x) are concerned, these provisions are discussed at a later stage See paragraphs 320 to 322. 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: 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 for a period of 5 years thereafter. Regulation 18(3) and 20(3) allow Requesting entities (RE) and Authentication Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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 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) 209. Other identity information is shared with Reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the information to CIDR. Sub-contracting of enrolment function is not allowed. The Code of 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 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 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the government. This may include demographic and core biometric 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, and meta data associated with any associated linkages, information relating 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 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 Code of Criminal Procedure allows medical examination of a person arrested on a charge of committing an offence if reasonable grounds exist for believing that an examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions. Some of these are already discussed above and some provisions are debated in the next issue. Summary thereof, 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 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. (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. (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 regime in the form of an enactment on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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 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 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection, 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at right to privacy and dignity and individual autonomy have been established by various cases. In Gobind v. State of M.P. (1975) 2 SCC 148, this Court held: "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. xx xx xx 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. 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 in order to guarantee that the individual, his personality, and those things stamped with his pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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. (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. (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 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 of a law (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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 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 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 had to be saved. The Petitioners 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the court finds that the decision is proportionate, it seldom 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 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 India Writ Petition (Civil) No. 215 of 2005 elaborates on the concepts of dignity, bodily integrity and decisional autonomy. For 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 Health 497 US 361 (1990). 242. The Petitioners further submitted that although the Aadhaar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are design flaws of such a probabilistic system, especially because biometrics also change over time. 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 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 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 & institutional structure through which residents were receiving entitlements. Mandatory imposition of Aadhaar violates their rights to choose how to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;) 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. 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 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 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 ECHR were referred to determine the contours of reasonable expectation of privacy. Submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion specifically stand excluded. 251. Face Photographs for the purpose of identification are not covered by a reasonable expectation of privacy. Barring unpublished 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmative action is Constitutionally supported. (iii) Act satisfies Proportionality Test 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 Judiciary. The state had rejected the idea of 'smart cards' and other 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 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 G. Sundarrajan v. Union of India (2013) 6 SCC 670 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual seeks employment, service, subsidy or benefits. Moreover, Aadhaar is of a Universal nature, unlike any other identification 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 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 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. The state requires to strike a fair balance between the right of privacy and right to life of beneficiaries. An example furnished by the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 enrolment under the Aadhaar scheme from 2009 to 2016 should be inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, it is also necessary to take measures relating to ensuring security of the 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 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; (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; (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-Secretary to perform functions in pursuance of the objectives above; (e) maintenance and updating the information of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal and economic success which has proved 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 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 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 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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, benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate food. Eradicating extreme poverty and hunger is one of the goals under the Millennium Development 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 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 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 judgment of this Court in His ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 the Directive Principles of State Policy should not be permitted to 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." 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 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 proportional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as both a protector of Human Rights and an engine of economic and social reforms. In People's Union for Civil Liberties (PUCL) v. Union of India (2001) 5 Scale 303, 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 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Tribes.The Court held that people who are wealthier and better educated (the 'creamy layer') should be excluded from the 27 per cent quota for 'Other Backward 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 Bengal (1996) 4 SCC 37, 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 and Ors. (1992) 3 SCC 666, 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 Pradesh (1993) 1 SCC 645, the Court clarified 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 Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber 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 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 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 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 num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n importance of achieving the 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 their habits and silently influence their behaviour throughout their lives. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest' 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivacy, yet 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 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, 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 autonomy of the individual. This is a complex exercise involving careful balancing. In this balancing process, following parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onflict as regards finger prints. 290. In the leading case Katz v. US 389 U.S. 347 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 expectation is one that the society is prepared to recognize as reasonable. This was also followed in Smith v. Marlyand 442 US 735. 291. In the judgment of Court of Appeal in R. Wood v. Commissioner (2010) 1 WLR 123, the Appellant complained against taking and retention of his photograph in Central London in the context of a meeting by the 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: (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ris 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 Supreme Court Rules. 295. As regards core biometric information which comprises finger 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 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 use of biometric passports. Many civilized countries with robust democratic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least one able member of every household in the rural area on assets creating public work programme. Sections 3 and 4 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. 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. 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 minimum is in line with human dignity emerges from Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Human Rights 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. 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: "...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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that Civil and political rights a re. 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 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. '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.... 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 to social security, to work, to rest and leisure, to medical care, to education, and 'to enjoy the arts and to share in sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 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: 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 overactivit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut these reports: (I) Reports relating to leakages in PDS Several studies initiated by the Government as well as the World 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 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. (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, total of 37 lakh ineligible/fake ration cards for households have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rural Development, Government of India as "The study of Schedule of Rates for National Rural Employment Guarantee 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. (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 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 biometric-based unique identity for all residents in the country has the potential to address need of the govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vileged 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. 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. 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 their profiles. In fact, this technology becomes a vital tool o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 society. xx xx xx 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 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 this regard a passage from Sakal Papers (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is constitutional if it is 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 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 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 the same individual, which appear to be in conflict with each other, is done, we find that the Aadhaar Act has struck a fair balance between the right of privacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, according to us, takes care of the problem. 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, 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. 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 such studies. These become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Act. It could have happened in other cases as well. Be as it may, 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 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 fruits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad ejusdem generis with the preceding word 'subsidies'. 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 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 is only in respect of fertilizer subsidy where authentication is required 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 notifications relating to children are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 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, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, not in a position to negotiate her 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 regarded as primary consideration in our Constitution (See R.D. Upadhyay v. State of Andhra Pradesh and Ors. (2007) 15 SCC 49). The convention on the Rights of Child 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. 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 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 parents and guardians of the children to assert their rights and act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, a reasonable period as may be prescribed." 330. Section 3 of the Juvenile Justice Act, 2015 expounds the 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 English quote in Murray v. Big Pictures (UK) Ltd. (2008) 3 WLR 1360 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: "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, the absence of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sofar as the school admissions of children are 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 21A of the Constitution, school admission cannot be treated as 'benefit' as well. (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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is operated privately cannot be entrusted with the crucial tasks of explaining the voluntary nature of Aadhaar enrolments and securing informed consent. 4. Section 2(v)-'resident' The expression 'Resident' defined in Section 2(v) is arbitrary and unconstitutional inasmuch as the Act creates no credible machinery for evaluating a claim that a person has been residing in India for a period of 182 days or more, in the 12 months immediately preceding the date of application for enrolment. The forms being used by the Respondents as also proof of identification and proof of address requirement being used by the Respondents until enactment of the statute nowhere require any proof relating to residence for 182 days. The impugned Act purports to validate all these enrolments. The forms being used by the Respondents do not even contain a declaration regarding the enrolee being resident for 182 days. Further, there is no requirement in the definition of 'Resident' that the person has to be legally resident and the expression would wrongly take in illegal immigrants as well. 5. Section 3-Aadhaar Number It is an 'entitlement'. It cannot be understood to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter securing passports in violation of the citizenship provisions. 10. Chapter IV-Sections 11 to 23 The Petitioners submit that the whole of Chapter IV of the Act comprising Sections 11 to 23 is ultra vires and unconstitutional. The Constitution does not permit the establishment of an authority that in turn through an invasive programme can chain every Indian citizen/resident to a central data bank and maintain lifelong records and logs of that individual. The Constitution of India when read as a whole is designed for a nation of free individuals who enjoy a full range of rights and who are entitled under the Constitution to lead their lives without any monitoring or scrutiny or continuous oversight by the State or any of its organs. The high value of personal freedom runs throughout the fabric of the Indian Constitution and any authority created for the purpose of 'cradle to grave' scrutiny is directly violative of the personal freedom charter built into the Indian Constitution. The Constitution of India does not contemplate a 'nanny state' where the State oversees every individual's conduct and maintains a record of individual interactions. The UIDAI by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an Aadhaar number, all numbers shall be temporarily suspended till such time that the Aadhaar number holder updates or rectifies the alleged error. Notably, as per Regulation 30, there shall be a post facto communication of omission or deactivation of the Aadhaar number shall be informed to the Aadhaar number holder. The only redressal mechanism provided under the Aadhaar Act is under Regulation 32 wherein a grievance redressal call centre shall be provided by the UIDAI. This provision provides unbridled power to the UIDAI to switch of the life of an individual. There is absolutely no redressal mechanism for the individual. He is not even provided with an opportunity of hearing prior to deactivation, which violates principles of natural justice. 13. Section 29 This Section is liable to be struck down inasmuch as it pertains sharing of identity information. The provisions suffer from the vice of permitting the spread and dissemination of sensitive personal information through a network of entities and individuals for commercial gain or otherwise and allows for the sharing of information beyond the ostensible object of targeted deliveries. Both the biom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar is unconstitutional as it forecloses legal remedy to affected individuals. 16. Section 48-Power of Central Government to supersede UIDAI This Section is vague and arbitrary inasmuch as it permits the Central Government to take over the UIDAI. The Act does not define a 'public emergency'. This Section empowers the Central Government in an 'emergency' situation to be in a position to completely control the life of every citizen who is enrolled with the UIDAI. 17. Section 57 Section 57 is patently unconstitutional inasmuch as it allows an unrestricted extension of the Aadhaar platform to users who may be Government agencies or private sector operators. This provision clearly shows that the impugned Act has a much wider scope than what may legitimately be considered as a Money Bill. 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. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 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 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 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 Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 remains that as per the Government and Uidai 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 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. 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, this provision is for the benefit of the categories of persons mentioned in Section 5. No doubt, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt can always 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 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. 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 Authe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnology, 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 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 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 Sections 28 and 29 is partially lifted only in the eventuality on passing an order by the court not inferior to that of District Judge. This itself is a reasonable safeguard. Obviously, in any proceedings where the Court fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of 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 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 Protection Services Private Limited v. Union of India and Ors. (2014) 5 SCC 409 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 law. It is a matter of policy. It is not for the court to decide wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction to exercise the powers under the said section. Public emergency 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 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 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 public safet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 353. According to the Respondents, the rationale behind Section 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. (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 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 cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (1986) 1 SCR 103 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 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 rights of English-speaking parents in Quebec to educate their children in English-speaking schools Quebec Ass'n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66 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. Alberta (1998) 1 SCR 493. In R. v. Zundel (1992) 2 SCR 731, it also prohibited an intrusive use of a law that was unrelated to the objectives originally contemplated by the Parliament when that law was enacted. 363. Secondly, once an important public obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oportionality in India through various judgments 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 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. 366. We may mention here that insofar as U.S. Supreme Court is concerned, it has refused to apply the least intrusive test 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 Though there 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. Puttaswam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 in the manner the Petitioners suggest would have the effect of annulling Section 59 itself. Such an interpretation cannot be countenanced. We are of the opinion that case is squarely covered by the Constitution Bench judgment of this Court in West Ramnad Electric Distribution Co., Ltd. v. State of Madras and Anr. (1963) 2 SCR 747 as well as Bishambhar Nath Kohli and Ors. v. State of Uttar Pradesh and Ors. (1966) 2 SCR 158. 372. We would also like to point out that the submission of the 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 and Anr. v. D. Achiah Chetty, Etc. (1969) 1 SCC 248. The legislature is, thus, empowered to incorporate deeming provisions in a statute. This proposition has also been repeatedly affirmed by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 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. *** 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of T.N. v. Arooran Sugars Ltd., (1997) 1 SCC 326] the Constitution Bench, while dealing with the deeming provision in a statute, 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 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 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. 38. From the aforesaid pronouncements, the principle that can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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. 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 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 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: "(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 govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upheld the principle of limited governments 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 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 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 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 enjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. xx xx xx 17.20...it is simply not true that persons entrusted with the duty of 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 to be created? The answer is, legislative and executive power controlled by constitutional limitations including fundamental rights ... xx xx xx 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, 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 17.34 But can fundamental rights acting as limitations on legislative and executive power secure public welfar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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. 83. ... The issue of constitutional trust arises in the context of the 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.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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility 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 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 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans to constitutional governance." 386. Since the arguments on limited government advanced by 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: "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 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 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, 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." 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 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 law which takes away or abridges, any provision of Part III. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , including fingerprints and storing at a central depository as it puts the State in an extremely dominant position in relation to the individual citizens. He also submitted that it will put the State in 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 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 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 particularly the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills".- (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 of the following matters, namely: (a) the imposition, abolition, remission, alteration or Regulation of 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; (c) the cu (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). stody 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; (e) the declaring of any expenditure to be expenditure charged on 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 audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 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 interpretation of the word 'only', reference was made to the judgment in the case of Hari Ram and Ors. v. Babu Gokul Prasad (1991) Supp. 2 SCC 608: "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 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 the form of crop share shall be deemed to hold such land; (ii) any person who cultivates land in partnership with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be covered under the aforesaid entry. xx xx xx 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 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 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" 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 followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to' any of the enumerated matters so contained in the 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. THE PARLIAMENTARY ACT, 1911 Chapter 13 of the Parliament Act, 1911 wherein Money Bill is defined as under: "(1) ... (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 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 Sub-section the expressions "taxation", "public m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Money Bills. One has to look to the objective of the bill. Therefore, if the substantial provisions 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 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsidies, 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, which is to ensure that subsidy, benefit or service for which expenditure is incurred from or the receipt therefrom forms part of, the Consolidated 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. Saeed Siddiqui v. State of Uttar Pradesh and Anr. (2014) 11 SCC 415 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 of 2012 (Writ-C 24905 of 2012), order dated 27-8-2012 (All)] whereby the High Court, while allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The "proceeding of the legislature" includes everything said or 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 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 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 be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal v. Lok Sabha (2007) 3 SCC 184], it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, 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 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 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 introduction of a Bill, as has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in question in any court. Accordingly, he suggested that the words 'called in question' be replaced with 'called in question in any court'. Refuting 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 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 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 and Ors. v. State of Bihar and Ors. AIR 1963 Pat 16 was also taken, which has been approved by the Constitution Bench judgment of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsist upon Aadhaar and make Aadhaar mandatory, unless required by law. Therefore, Section 57 is a limitation imposed under the Aadhaar Act on the use of Aadhaar number by private parties which is purely 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 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 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 Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oung Indian Union, a Council of States (the Rajya Sabha) in the Union Parliament was seen as an essential requirement for a federal 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 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 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties 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 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 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 of persons, for whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 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 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Respondents have rights remarked that the Authority 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 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 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 Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws 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. 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: 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 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. 136.3. Section 139-AA of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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: 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 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 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" as well as the "larger public interest" has now introduced Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foolproof. Many instances are found where 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 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is foul 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 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 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 biometrics will not allow that and, therefore, it may check the growth of shell companies as well. xx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 as tax non-compliant, with the following figures: "India's tax to GDP ratio is very low, and the proportion of 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 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 returns for Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em (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, 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 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 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 proportionality test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme. 126. Whether such a scheme should remain voluntary or it can be made mandatory imposing compulsiveness on the people to be 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 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 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 PA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al right which many laws do, such limitation is constitutional if it is 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 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). 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. 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, contained in K.S. Puttaswamy. Prevention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the designated officer of the banking company, while opening 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 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; (iii) the small account shall remain operational initially for a period 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-rule (1), submit to the reporting entity the certified copies of the following documents: (i) registration certificate; (ii) partnership deed; and (iii) (a) Aadhaar number; and (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 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 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: (i) registration certificate; (ii) trust deed; and (iii) (a) Aadhaar number; and (b) Permanent Account Number or Form 60 as defined in the Income Tax Rules, 1962, issued to the person holding an att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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: 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) 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 enrolmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered ineligible to operate the bank 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 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. 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 every contention raised by the Petitioners. Our considered opinion is that it does not meet the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 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 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 of KYC which the banks are already undertaking, the state has not discharged its burden as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 and Anr. (2017) 7 SCC 155 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 deliberate on the aspects of necessity of such a provision in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (which have already been taken note of in the beginning 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 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 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. 445. We feel that it would have been better had a clarification been obtained from the Court after the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the orders passed by this Court which 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." 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 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 to name, date of birth and address, biometric information in the form of photograph, fingerprint, iris scan is also to be provided. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (e) 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 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 having been collected by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, 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 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. (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnity, 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 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 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, (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 second aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. (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 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 '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the Courts. For, there cannot be undue intrusion into the autonomy on the pretext of conferment of economic benefits. (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 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 thereupon are summarised below: (1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground? 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. (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 bio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of five years is held to be bad in law. (ii) 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. (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. (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. (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. (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 to an individual do not qualify as being an inherent part of right to privacy. Only those matters over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount 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 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 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 shift in addressing the problem of security and eradicating extreme poverty and hunger. The shift is from the welfare appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy, 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 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 with dignity, whether her sacrifice to the right to privacy, is so invasive that it creates imbalance? (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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.: (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 happen in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haar 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 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. 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 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 (iv) Section 2(v) (v) Section 3 (vi) Section 5 (vii) Section 6 (viii) Section 8 (ix) Section 9 (x) Sections 11 to 23 (xi) Sections 23 and 54 (xii) Section 23(2)(g) read with Chapter VI & VII-Regulations 27 to 32 (xiii) Section 29 (xiv) Section 33 (xv) Section 47 (xvi) Section 48 (xvii) Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, for determination of such an eventuality, an officer higher 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 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 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 identity of an individual 'for any purpose'. We read down this provision to mean that such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides. (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 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 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 Statement of Objects and Reasons very categorically record that the main purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfies the conditions of Article 110 of the Constitution. Upto this stage, there is no quarrel between the 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 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? 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 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive. 448. In view of the aforesaid discussion and observations, the writ petitions, transferred cases, special leave petition, contempt petitions and all the pending applications stand disposed of. JUDGMENT INDEX A. Introduction: technology, governance and freedom B. The Puttaswamy (2017) 10 SCC 1 principles B.1 Origins: privacy as a natural right B.2 Privacy as a constitutionally protected right: liberty and dignity B.3 Contours of privacy B.4 Informational privacy B.5 Restricting the right to privacy B.6 Legitimate state interests C. Submissions C.1 Petitioners' submissions C.2 Respondents' submissions D. Architecture of Aadhaar: analysis of the legal framework E. Passage of Aadhaar Act as a Money Bill E.1 Judicial Review of the Speaker's Decision E.2 Aadhaar Act as a Money Bill F. Biometrics, Privacy and Aadhaar F.1 Increased use of biometric technology F.2 Consent in the collection of biometric data F.3 Position before the Aadhaar legislation F.4 Privacy Concerns in the Aadhaar Act 1. Consent during enrolment and authentication & the right to access information under the Aadhaar Act 2. Extent of information disclosed during a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur decision must address the dialogue between technology and power. The decision will analyse the extent to which technology has reconfigured the role of the state and has the potential to reset the lines which mark off no-fly zones: areas where the sanctity of the individual is inviolable. Our path will define our commitment to limited government. Technology confronts the future of freedom itself. 4. Granville Austin, the eminent scholar of the Indian Constitution had prescient comments on the philosophy of the Indian Constitution. He found it in three strands: "The Constitution...may be summarized as having three strands: protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the mass of Indians...the three strands are mutually dependent and inextricably intertwined. Social revolution could not be sought or gained at the expense of democracy. Nor could India be truly democratic unless the social revolution had to establish a just society. Without national unity, democracy would be endangered and there would be little progress toward social and economic reform. And without democra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitive duties which the state has to its citizens. While social welfare is a foundational value, the Constitution is the protector of fundamental human rights. In subserving both those ideals, it has weaved a liberal political order where individual rights and freedoms are at the heart of a democratic society. The Constitution seeks to fulfil its liberal values by protecting equality, dignity, privacy, autonomy, expression and other freedoms. 8. Two recent books have explored the complexities of human identity. In "The Lies That Bind: Rethinking Identity"61, Kwame Anthony Appiah states that a liberal constitutional democracy is not a fate but a project. He draws inspiration from the Roman playwright Terence who observes: "I am human. I think nothing human alien to me." Francis Fukuyama, on the other hand has a distinct nuance about identity. In "Identity: The Demand for Dignity and the Politics of Enlightenment62, he writes about how nations can facilitate "integrative national identities" based on liberal democratic values. Reviewing the books, Anand Giridharadas noted that Fukuyama's sense of identity is "large enough to be inclusive but small enough to give people a real se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty project in the world, must be scrutinized carefully to assess its compliance with human rights. 11. Empowered by the technology that accompanied the advent of the information age, the Aadhaar project was envisioned and born. The project is a centralised nation-wide identification system based on biometric technology. It aims to be a game changer in the delivery of welfare benefits through the use of technology. The project seeks to facilitate de-duplication, prevent revenue leakages and ensure a more cost and time efficient procedure for identification. Conceptualised on the use of biometrics and authentication, the Aadhaar identity card was originally introduced as a matter of voluntary choice. It was made a requirement for state subsidies and benefits for which, expenses are incurred from the Consolidated Fund of India. It was later expanded to become necessary to avail of a host of other services. The project is multifaceted and expansive. Perhaps no similar national identity program exists in the world. The Aadhaar project has multifarious aspects, all of which have been the subject of a detailed challenge by the Petitioners. They have been met with an equally strong defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Rule of law. Among them is the scope of this Court's power of judicial review. The Aadhaar legislation was passed as a money bill in the Lok Sabha. Whether it was permissible, in constitutional terms, to by-pass the Rajya Sabha, is the question. The role of the Rajya Sabha in a bicameral legislative structure, the limits of executive power when it affects fundamental rights and the duty of the state to abide by interim orders of this Court are matters which will fall for analysis in the case. 16. The case is hence as much about the Rule of law and institutional governance. Accountability is a key facet of the Rule of law. Professor Upendra Baxi has remarked: "The problem of human rights, in situations of mass poverty, is thus one of redistribution, access and needs. In other words, it is a problem of "development", a process of planned social change through continuing exercise of public power. As there is no assurance that public power will always, or even in most cases, be exercised in favour of the deprived and dispossessed, an important conception of development itself is accountability, by the wielders of public power, to the people affected by it and people at lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the human element which dwells within." Ibid, at page 508 (Emphasis supplied)70 In his concurring opinion, S.A. Bobde, J. opined: "392. ...Privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man." Ibid, at pages 536-537 (Emphasis supplied) Similarly, in his concurring opinion, Nariman, J. opined: "532. ...It was, therefore, argued before us that given the international conventions referred to hereinabove and the fact that this right inheres in every individual by virtue of his being a human being, such right is not conferred by the Constitution but is only recognized and given the status of being fundamental. There is no doubt that the Petitioners are correct in this submission." Ibid, at page 605 (Emphasis supplied) In his concurring opinion, Abhay Manohar Sapre, J. opined: "557. In my considered opinion, "right to privacy of any individual" is essentially a natural right, which inheres in every human being by birth...It is indeed inseparable and inalienable from human being." 6 Ibid, at page 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subversion of political freedom." "266...The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights." Ibid, at pages 481-482 267... Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive. "Ibid, at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment: "322. Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves 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. Ibid, at page 508 298. ...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 and self-determination. "Ibid, at page 499 24. Privacy is founded on the autonomy of the individual. The ability to make choices is at the core of the human personality. Its inviolable nature is manifested in the ability to make intimate decisions about oneself with a legitimate expectation of privacy. Privacy guarantees constitutional protection to all aspects of personhood. Privacy was held to be an "essential condition" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ization of every individual, privacy was held to be a common theme running across the freedoms and rights guaranteed not just by Article 21, but all of Part III of the Constitution. Bobde J. in his separate opinion held that: "406. It is not possible to truncate or isolate the basic freedom to do an activity in seclusion from the freedom to do the activity itself. The right to claim a basic condition like privacy in which guaranteed fundamental rights can be exercised must itself be regarded as a fundamental right. Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of 'personal liberty' and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the Constitution. Ibid, at pages 541-542 415. Privacy is the necessary condition precedent to 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 meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion held that the right to privacy may also inhere in other parts of the Constitution beyond those specified in the judgment: "415. Therefore, privacy is the necessary condition precedent to 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. 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." Ibid, at page 545 (Emphasis supplied) B.4 Informational privacy 29. Puttaswamy held that informational privacy is an essential aspect of the fundamental right to privacy. It protects an individual's free, personal conception of the 'self.' Justice Nariman held that informational privacy "deals with a person's mind, and therefore recognizes that an individual may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognition that such right exists notwithstanding the shifting sands of majority governments. Statutes may protect fundamental rights; they may also infringe them. In case any existing statute or any statute to be made in the future is an infringement of the inalienable right to privacy, this Court would then be required to test such statute against such fundamental right and if it is found that there is an infringement of such right, without any countervailing societal or public interest, it would be the duty of this Court to declare such legislation to be void as offending the fundamental right to privacy." Ibid, at pages 580-581 A constitutional right may embody positive and negative 'aspects'. They signify mandates. At an affirmative level, they emphasise the content and diversity of our liberties. As a 'negative', they impose restraints on the state and limit the power of the state to intrude upon the area of personal freedom. 'Negative' in this sense reflects a restraint: the fundamental rights are a restraining influence on the authority of power. In addition to keeping itself within the bounds of its authority, the state may have a positive obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proportionality requires the State to justify that the means which are adopted by the legislature would encroach upon the right to privacy only to the minimum degree necessary to achieve its legitimate interest. Justice Nariman held thus: "495. ...Statutory provisions that deal with aspects of privacy would continue to be tested on the ground that they would violate the 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 the individual right to privacy as well...in pursuance of a statutory requirement, if certain details need to be given for the concerned statutory purpose, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the protection guaranteed to privacy. Consequently, privacy infringements will generally have to satisfy the other tests applicable apart from those Under Article 21. In his concurring opinion, Justice S.A. Bobde held: "427. Once it is established that privacy imbues every constitutional freedom with its efficacy and that it can be located in each of them, it must follow that interference with it by the state must be tested against whichever one or more Part III guarantees whose enjoyment is curtailed. As a result, privacy violations will usually have to answer to tests in addition to the one applicable to Article 21, Such a view would be wholly consistent with R.C. Cooper v. Union of India." Ibid, at page 549 (Emphasis supplied) Any attempt by the State to restrict privacy must therefore meet the constitutional requirements prescribed for each provision of Part III, which the restriction infringes. In his concurring opinion, Justice Nariman held thus: "488... Every State intrusion into privacy interests which deals with the physical body or the dissemination of information personal to an individual or personal choices relating to the individual would be subjected to the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness." 36. The judgment sets out illustrations of legitimate State interests. The provisos to various fundamental rights were held to be an obvious restriction on the right to privacy. It was held that the State does have a legitimate interest in collection and storage of private information when it is related to security of the nation. Apart from the concerns of national security, an important State interest, it was held, lies in ensuring that scarce public resources reach the beneficiaries for whom they are intended. It was held thus: "311....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." Ibid, at page 505 Prevention and investigation of crime, protection of the revenue and public health were demarcated as being part of other legitimate aims of the State. The judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surveillance by the State; iii The fundamental constitutional feature of a 'limited government'-which is the sovereignty of the people and limited government authority-is changed completely post Aadhaar and reverses the relationship between the citizen and the State; iv Due to the unreliability of biometric technology, there are authentication failures which lead to the exclusion of individuals from welfare schemes; v A citizen or resident in a democratic society has a choice to identify herself through different modes in the course of her interactions generally in society, as well as in her interactions with the State. Mandating identification by only one mode is highly intrusive, excessive and disproportionate and violates Articles 14, 19 and 21; and vi The procedure adopted by the State before and after the enactment of the law is violative of Articles 14 and 21 because: a. There is no informed consent at the time of enrolment; b. UIDAI does not have control over the enrolling agencies and requesting entities that collect sensitive personal information which facilitates capture, storage and misuse of information; and c. The data collected and uploaded into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LSA (2014) 5 SCC 438 and Subramanian Swamy (2016) 7 SCC 221; ii The Aadhaar project is unconstitutional as it seeks a waiver of fundamental rights; iii The Aadhaar project violates the guarantees of substantive and procedural reasonableness Under Articles 14, 19 and 21; iv Aadhaar perpetrates exclusion from social security schemes and is therefore discriminatory Under Article 14; v The Aadhaar Act lacks legitimacy in its object in so far as it validates a breach of fundamental rights retrospectively; vi Rights and entitlements conferred under the Constitution cannot be based on algorithmic probabilities which UIDAI cannot control; vii No consequence is prescribed for non-authentication under the Aadhaar Act; viii The Aadhaar Act violates Part IX of the Constitution, which provides for decentralisation (to Panchayats), while the Aadhaar scheme strikes at the federal structure of the Constitution; and ix Breaches under the Aadhaar Act cannot be cured. Mr. Arvind Datar, learned Senior Counsel has submitted: i Rule 9 of the PMLA (Second Amendment) Rules, 2017 which requires mandatory linking of Aadhaar with bank accounts is unconstitutional and violates Articles 14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution which implies that the scope of money bills is narrower than the scope of financial bills and provisions relating to money bills must thus be construed strictly; ii. The Aadhaar Act, which was passed as a money bill, should be struck down since many of its provisions such as Section 57 have no relation to the nature of a Money Bill and bear no nexus to the Consolidated Fund of India; iii. Since Money Bills can only be introduced in the Lok Sabha, on account of the curtailment of the powers of the Rajya Sabha and the President, the relevant provisions must be accorded a strict interpretation; iv. While Article 110(3) provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a 'Money Bill' shall be final, the finality is only with regard to the Parliament and does not exclude judicial review; and v. Since the legislative procedure is illegal and the power of the Rajya Sabha has been circumvented to disallow legislative scrutiny of the Aadhaar bill, provisions of the Act cannot be severed to save the Act and the Act is liable to be struck down as a whole by the Court. Mr. K.V. Vishwanathan, learned Senior Counsel made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security in the Aadhaar project violates the right to privacy Under Article 21; iv Excessive powers have been delegated to the UIDAI through the Aadhaar Act; and v. Sections 33(2) and 57 of the Act are vague, overbroad and constitutionally invalid. Ms. Meenakshi Arora, learned Senior Counsel contended that: i. The general and indiscriminate retention of personal data, including metadata, and the ensuing possibility of surveillance by the State has a chilling effect on fundamental rights like the freedom of speech and expression, privacy, and dignity; ii. Making Aadhaar the sole means of identification for various services impinges upon dignity as it amounts to requiring a license for the exercise of fundamental rights; and iii. The Aadhaar project does not contain any specific provisions for data protection, apart from a mere general obligation on UIDAI, which is a violation of the obligation of the State to ensure that the right to life, liberty, dignity and privacy of every individual is not breached under Part III of the Constitution. Mr. Sajjan Poovayya, learned Senior Counsel has urged the following submissions: i The Aadhaar Act fails to satisfy the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident Indians leads to discrimination when NRIs seek to avail of basic services in India. C.2 Respondents' submissions Mr. K.K. Venugopal, Learned Attorney General for India, has submitted thus: i. For the period prior to coming into force of the Aadhaar Act, because of the interim orders passed by the SC, obtaining an Aadhaar number or enrollment number was voluntary, and hence there was no violation of any right; ii. Section 59 of the Aadhaar Act protects all actions taken from the period between 2010 till the passage of the Aadhaar Act in 2016; iii. The judgments in MP Sharma and Kharak Singh being those of 8 and 6 judges respectively, holding that the right to privacy is not a fundamental right, judgments of smaller benches delivered during the period upto Puttaswamy would be per incuriam. Hence, the State need not have proceeded on the basis that a law was required for the purpose of getting an Aadhaar number or an enrolment number. As a result, the administrative actions taken would be valid as well as the receipt of benefits and subsidies by the beneficiaries; iv. Subsequent to the Aadhaar Act, the Petitioners would have to establish that one or more of the tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raphic information that is required for Aadhaar enrollment is already submitted while obtaining a PAN card and therefore individuals do not have a legitimate interest in withholding information; iii. Linking Aadhaar to PAN is in public interest on the following grounds: a. The State has a legitimate interest in curbing the menace of black money, money laundering and tax evasion, often facilitated by duplicate PAN cards, and the linking of Aadhaar to the PAN card will ensure that one person holds only one PAN Card, thereby curbing these economic offences; b. Aadhaar-PAN linking is in public interest and satisfies the test of proportionality and reasonableness; c. The individual interest gives way to a larger public interest and a statutory provision furthering state interest will take precedence over fundamental rights; d. The Court must not interfere with the Legislature's wisdom unless the statutory measure is shockingly disproportionate to the object sought to be achieved; e. India is a signatory to various international treaties under which it has obligations to take action to curb the menace of black money and money laundering in pursuance of which measures incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liorate the lot of the poor and the Dalits; vi. Socio-economic rights must be read into Part III of the Constitution since civil and political rights cannot be enjoyed without strengthening socio-economic rights; vii. A welfare State has a duty to ensure that each citizen has access at least to the basic necessities of life. The idea of a socialist state under a mandate to secure justice-social, economic and political-will be completely illusory if it fails to secure for its citizens the basic necessities in life. There cannot be any dignity for those who suffer starvation, subjugation, deprivation and marginalization and those who are compelled to do work which is intrinsically below human dignity; viii. The Aadhaar number does not convert individuals to numbers. The Aadhaar number is necessary for authentication and it is solely used for that purpose. The Petitioners have conflated the concepts of identity and identification. Authentication through a number is merely a technological requirement which does not alter the identity of an individual; ix. Even if there is a conflict between the right to privacy and the right to food and shelter, the Aadhaar Act strikes a fair b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delegation of power to UIDAI and there are sufficient guidelines coupled with restrictions. The Regulation making power of the Authority under the Act is limited by the use of the expression 'such other biological attribute' which will be interpreted ejusdem generis with the categories of information mentioned before namely, fingerprints and iris scan. These categories have certain characteristics: firstly, they do not contain genetic information; secondly, they are non-intrusive; thirdly, apart from carrying out authentication they do not reveal any other information of the individual; fourthly, these are modes of identification used for identifying a person even without digital technology; fifthly, they are capable of being used for instantaneous digital authentication; and sixthly, they are biological attributes enabling digital authentication. The addition of biological attributes, Under Section 54, must mandatorily be laid before the Parliament Under Section 55. This is an additional check on the Regulation making power of UIDAI; xix. Under Section 2(k), which defines demographic information, certain sensitive categories of information such as 'race, religion, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect the linking of Aadhaar card, with SIM card, as it is proportional to the object sought to be achieved in the interest of national security; xxvii. Regarding the process of authentication and metadata retained under the Act, it is submitted: a. The only purpose of the Aadhaar project is authentication and there is no power under the Act to analyze data; b. The Aadhaar Act does not involve big data or learning algorithms. It merely utilizes a matching algorithm for the purpose of authentication; c. Metadata contemplated is process or technical metadata and does not reveal anything about the individual. Section 2(d) of the Act defines "authentication record" to mean the record of the time of authentication, identity of the RE and the response provided by the Authority", and the relevant authentication Regulation, Regulation 26, does not go beyond the scope of Section 2(d) of the Act; d. Moreover, Regulation 26 and Section 32(3) of the Act prohibit the Authority from collecting or storing any information about the purpose of authentication; and e. Only limited technical metadata is required to be stored in an effort to exercise control over REs by way of audits. xxv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance in real time by the State; xxxiii. The giving of identity information and undergoing authentication has no direct and inevitable effect on Article 19(1)(a). Alternatively, even if Article 19(1)(a) is attracted, Article 19(2) would protect Section 7 of the Aadhaar Act as it has a direct and proximate nexus to public order and security of the State; xxxiv. In response to the argument that the requirements of Aadhaar number and authentication for benefits, services and subsidies would be ultra vires Article 243-G and items 11, 12, 16, 17, 23, 25 and 28 of the XIth Schedule, it is submitted that the Panchayats get only such powers as are given to it by the legislature of the State. Article 243-G is merely enabling. There is no compulsion upon the State to endow the Panchayats with powers relating to the items specified in the XIth Schedule; xxxv. On the validity and purpose of Section 57, it is urged: a. Section 57 is not an enabling provision. It merely provides, as it states, that the provisions of the Act would not prevent the use of Aadhaar for other purposes; b. However, Section 57 imposes a limitation on any such use for other purposes, that the use must be sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crofinance institutions, thus reducing predatory financing; and v. A statute cannot be struck down on the ground that there is scope for misuse. Mr. Jayant Bhushan, learned Senior Counsel appearing for the Reserve Bank of India urged the following submissions before the Court: i. RBI, in exercise of its powers under the Banking Regulation Act, 1949 and Rule 9 of the PMLA Rules, 2005 issued an amended Master Circular on April 20, 2018 which mandates that Aadhaar has to be submitted to a Reporting Entity. This circular conforms with the PMLA rules; ii. Rule 9(14) of the PMLA Rules provides that the Regulator-the RBI in this case, lay down guidelines incorporating the requirements of sub-rules 9(1)-(13), which would include enhanced or simplified measures to verify identity; and iii. The requirement of submission of Aadhaar to the RE is in exercise of this power Under Rule 9(14). Mr. Gopal Sankarnarayanan, learned Counsel, has submitted: i. The Aadhaar Act as a whole does not violate the fundamental right to privacy; ii. The factors that save the Aadhaar Act from failing the proportionality test are (a) Voluntariness to subject one 's identity information to obtain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data of their own customers and not of other REs' customers, so there is no possibility of surveillance. iii. Safeguards against disclosure of information in the Aadhaar Act are superior to the safeguards laid down in the PUCL case (2011) 14 SCC 331. Sections 8, 28 and 29 along with Chapter VII which deals with Offences and Penalties, provide for protection of information and Section 33 lays down a strict procedure for disclosure. Even though the Aadhaar Act is not required to meet the same standard as laid down in PUCL, the safeguards in the Act are not only adequate with regard to identity information and authentication records, but far exceed the safeguards laid down PUCL; iv. The Petitioners cannot contend that Section 33(2) of the Aadhaar Act goes against the principles of natural justice and is disproportionate (as it does not define the term "national security") for the following reasons: a. What is in the interest of "national security" is not a question of law but that of policy lying in the executive domain; and b. Principles of natural justice cannot be observed strictly in a situation implicating national security. In such cases, it is the duty of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ensure proper allocation of resources as there is a constitutional mandate upon the State Under Article 14 to efficiently utilize its resources. ix. There is no conflict between the Aadhaar Act and the Income Tax Act as they are both stand alone laws and their scope of operation is different; x. Through the Aadhaar Act, the State is furthering the following obligations under Part III and Part IV of the Constitution and international obligations: a. The State has a positive obligation for securing socio-economic rights; like the basic right to food, shelter and livelihood of people arising out of Article 21, even though it is worded negatively; b. The Supreme Court has observed that civil & political rights and socio-economic rights in India are placed on the same pedestal [PUCL]. Aadhaar is a means of achieving the latter set of rights. The proportionality analysis would therefore require a balancing of rights in this context; c. Articles 38, 39(b), (c), (e), (f), 41, 43, 47 and 51(c) impose a constitutional mandate on the State to ensure effective and efficient utilization of public resources; d. The State is the trustee of public resources towards people, and ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Identities Data Repository (CIDR). The former part of the legislative design is implemented by its regulatory provisions governing enrolment Section 2(m) states: "enrolment" 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 Aadhaar numbers to such individuals under this Act. of individuals who would be allotted a unique identity number. The latter part of the legislative design consists of the process of 'authentication'. 40. In order to facilitate an understanding of the key aspects of the law, Section 2 provides a dictionary of meanings. 'Aadhaar number' is defined in Section 2(a) as the identification number issued to the individual Under Sub-section (3) of Section 3. The individual to whom an Aadhaar number is issued is described in Section 2(b) as the 'Aadhaar number holder'. The expression 'authentication' is defined in Section 2(c) thus: "(c) "Authentication" means the process by which the Aadhaar number alongwith demographic information or biometric information of an individual is submitted to the Central Identit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the Regulations to be made under the Act. 41. The identity information of an individual is stored in a central depository. Section 2(h) defines "Central Identities Data Repository" as 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 related information. The CIDR is the backbone of the Aadhaar Act. All the information collected or created under the Act is stored in it. For the establishment and maintenance of the CIDR, it has been provided Section 10, Aadhaar Act under the Act that UIDAI may engage one or more entities, which can also perform any other functions as may be specified by Regulations. The Act does not prohibit the engagement of private entities for the establishment and maintenance of the CIDR. 42. Section 3, pertains to the entitlement to obtain an 'Aadhaar Number', which forms a part of Chapter II titled 'enrolment'. Section 3 comprises of three parts: (i) an entitlement of every resident to obtain an Aadhaar number; (ii) a requirement of submitting demographic and bio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose ofenrolling individuals under this Act, for collecting demographic and biometric information of individuals under the Act. The enrolling agency need not be an entity of the state. The definition opens the space for engagement of private entities in the collection of individual information for the process of enrolment. The enrolling agencies have to set up enrolment centers and they have to function in accordance with the procedure specified by UIDAI. Regulation 7, Aadhaar (Enrolment and Update) Regulations, 2016 Sub-section (2) of Section 3 requires the enrolling agency to disclose to the individual, who is undergoing enrolment, three important facets. The first is the manner in which the information which is disclosed by the individual would be used. The second relates to the nature of the recipients with whom the information is likely to be shared during the course of authentication. The third is founded upon the individual's right of access to the information disclosed. All these three facets are crucial to the legislative design because they try to place individual autonomy at the forefront of the process. An individual who discloses biometric and demographic informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for Authentication. By virtue of Section 7, an enabling provision has been made by which the Union or state governments may require proof of an Aadhaar number for receiving subsidies, benefits and services for which the expenditure is incurred from (or the receipts form part of) the Consolidated Fund of India. Section 7 is in the following terms: "7. Proof of Aadhaar number necessary for receipt of certain 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 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 of identification for delivery of the subsidy, benefit or service." Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and viable means of identification would be provided to the individual for the delivery of subsidies, benefits or services. Section 7 indicates that while the central or state governments can mandate that an individual must undergo authentication as a condition for the receipt of a subsidy, benefit or service, a failure of authentication cannot be held out as a ground to deny benefits, subsidies or services. That is for the reason that in the absence of authentication, possession of an Aadhaar number would suffice. Moreover, even if an individual does not possess an Aadhaar number, the mandate of Section 7 would be subserved by producing an application for enrolment. Section 3 which speaks of an entitlement to obtain an Aadhaar number stands in contrast to Section 7 under which an Aadhaar number may be required as a condition for the receipt of a subsidy, benefit or service. As an entitlement, Section 3 makes the possession of an Aadhaar number optional. Section 7 is an enabling power by which the central or state governments may make the requirement of an Aadhaar number compulsive or mandatory where a person desires a subsidy, benefit or service for which expenditure is incurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tication." This definition also does not prohibit the engagement of private agencies for the process of authentication. Under Sub-section (2) of Section 8, every requesting entity is bound to obtain the consent of the individual before collecting his or her identity information for the purpose of authentication. Moreover, the requesting entity must ensure that the identity information is submitted only for the purpose of authentication to the CIDR. Before the requesting entity submits the identity information for authentication, it is under a mandate of law to disclose (i) the nature of the information that may be shared upon authentication; (ii) the use to which information received during authentication may be put; and (iii) alternatives to the submission of identity information. Section 8(3), Aadhaar Act During the course of authentication, UIDAI is required to respond to an authentication query with a positive, negative or appropriate response sharing such identity information excluding core biometric information. Section 8(4), Aadhaar Act Core biometric information cannot be shared. The modes of authentication are as mentioned in Regulation 4 of the Aadhaar (Authentication) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various subsidies, benefits, services and other purposes for which Aadhaar numbers may be used; (i) specifying, by Regulations, the terms and conditions for appointment of Registrars, enrolling agencies and service providers and revocation of appointments thereof; (j) establishing, operating and maintaining of the Central Identities Data Repository; (k) sharing, in such manner as may be specified by Regulations, the information of Aadhaar number holders, subject to the provisions of this Act; (l) calling for information and records, conducting inspections, inquiries and audit of the operations for the purposes of this Act of the Central Identities Data Repository, Registrars, enrolling agencies and other agencies appointed under this Act; (m) specifying, by Regulations, various processes relating to data management, security protocols and other technology safeguards under this Act; (n) specifying, by Regulations, the conditions and procedures for issuance of new Aadhaar number to existing Aadhaar number holder; (o) levying and collecting the fees or authorising the Registrars, enrolling agencies or other service providers to collect such fees for the services provided by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner of their collection under Clause (b) of Sub-section (2) of Section 23; (k) the manner of maintaining and updating the information of individuals in the Central Identities Data Repository under Clause (f) of Sub-section (2) of Section 23; (l) the manner of omitting and deactivating an Aadhaar number and information relating thereto under Clause (g) of Sub-section (2) of Section 23; (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; (n) the terms and conditions for appointment of Registrars, enrolling agencies and other service providers and the revocation of appointments thereof under Clause (i) of Sub-section (2) of Section 23; (o) the manner of sharing information of Aadhaar number holder under Clause (k) of Sub-section (2) of Section 23; (p) various processes relating to data management, security protocol and other technology safeguards under Clause (m) of Sub-section (2) of Section 23; (q) the procedure for issuance of new Aadhaar number to existing Aadhaar number holder under Clause (n) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment. The Act does not set any limits within which the sole authority of UIDAI may operate. UIDAI has been conferred with discretionary powers as provided in the above provisions. The architecture of Aadhaar keeps UIDAI at the centre of all processes. 49. For the purpose of performing the functions of collecting, storing, securing, processing of information, delivery of Aadhaar numbers to individuals or performing authentication, Clause (a) of Section 23(3) contemplates that UIDAI may enter into Memoranda of Understanding or agreements with the central or state governments, Union territories or other agencies. In discharging its functions, UIDAI may appoint, by notification, a number of Registrars, engage and authorise such agencies to collect, store, secure and process information or perform authentication or such other functions in relation to it, as may be necessary for the purposes of the Act (Section 23 (3) (b)). For the efficient discharge of its functions, UIDAI may also engage consultants, advisors and other persons as may be required (Section 23(4)). These, like many other provisions, open the scope for the involvement of private entities in the Aadhaar project. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), and any agency that maintains the CIDR not to reveal any information stored or the authentication record to anyone. An Aadhaar number holder, however, may request UIDAI to provide access to identity information excluding core biometric information in the manner as may be specified by Regulations (proviso to Section 28(5)). Section 29 puts restrictions on sharing of information, collected or created under the Act. Sub-section (1) of Section 29 provides that: "(1) No core 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." Sub-section (2) contemplates that the identity information, other than core biometric information, collected or created under the Act may be shared only in accordance with the provisions of the Act and in the manner as may be specified by Regulations. A burden is placed, Under Section 29(3), upon a requesting entity to ensure that any identity information available with it, is neither used for any purpose, other than that specified to the individual at the time of submitting identity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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: 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 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 after the review by the Oversight Committee." The Aadhaar Act provides two categories: a "court order" and "in the interest of national security", where the personal information of an individual can be disclosed. Under Section 31, in case any demographic information or biometric information of an Aadhaar number holder is found to be incorrect, is lost or changes subsequently, the Aadhaar number holder is required to request UIDAI to make an alteration in his or her record in the CIDR in the manner specified by Regulations. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh rupees." Section 39 imposes a penalty for tampering with data in the CIDR. Sections 40 and 41 impose penalties on requesting and enrolment agencies in case they act in contravention of the obligations imposed upon them under the Act. Section 42 provides for a general penalty for an offence under the Act or the Rules or Regulations made thereunder, for which no specific penalty is provided under the Act. Under Section 43, when an offence has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 44 indicates that the provisions of the Act would apply to any offence or contravention committed outside India by any person, irrespective of nationality. The power to investigate offences under the Act has been placed, Under Section 45, on a police officer not below the rank of Inspector of Police. Section 47(1) of the Act puts a bar on the courts from taking cognizance of any offence punishable under the Act, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly done under that Rule or Regulation." UIDAI needs to place the Regulations framed by it before Parliament. 53. The architecture of Aadhaar is integral to the exercise of analyzing the reasonableness of the entire project. Whether the architecture addresses the concerns raised by the Petitioners is an essential component of this exercise. The architecture of Aadhaar must pass the constitutional requirements of reasonableness and proportionality. This aspect will be dealt under the heading of "proportionality" in a subsequent part of this judgment. E Passage of Aadhaar Act as a Money Bill 54. The Petitioners challenge the constitutionality of the Aadhaar Act, contending that it could not have been passed as a Money Bill. According to the submission, the Aadhaar Act did not qualify as a Money Bill Under Article 110 of the Constitution, and it legislates on matters which fall outside that provision. The Attorney General for India submitted that the Constitution accords finality to the decision of the Speaker as to whether a Bill is a Money Bill and hence the question whether the Aadhaar Act fulfils the requirements of being categorized as Money Bill is not open to judicial revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the Bill to enact the Aadhaar Act was not a Money Bill, whether a declaration of unconstitutionality will result from its legislative passage as a Money Bill in the Lok Sabha. E.I Judicial Review of the Speaker's Decision 56. Article 109 provides for a special procedure in respect of Money Bills. It provides that a Money Bill shall not be 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 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. Article 109(2), The Constitution of India If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the Money Bill is deemed to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding in the Council of States which has not been passed by the House of the People shall not lapse on a dissolution of the House of the People. (5) A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of States, shall, subject to the provisions of Article 108, lapse on a dissolution of the House of the People. 58. Ordinary bills can be passed only when they are agreed to by both Houses. Amendments suggested by one House have to be agreed upon by both the Houses for the bill to be passed. Both Houses of Parliament have a vital role assigned by the Constitution in the passage of ordinary bills. Deviating from the important role which it assigns to the Rajya Sabha in the passage of legislation, the Constitution carves out a limited role for the Rajya Sabha in the passage of Money Bills. 59. The Constitution confers special powers on the Speaker of the Lok Sabha in the passage of a Money Bill. Ordinary bills (other than Money Bills) can originate in either House of Parliament. They can be scrutinised, debated in and amended in both the Houses of Parliament during the course of passage. A Bill is not rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commons would become law in effect, only after the assent of the House of Lords and of the Queen. Ibid, at page 638 While the House of Commons enjoyed the legal right to originate grants for nearly 300 years, the House of Lords was originally not precluded from amending a Bill. But in 1671 Ibid, at page 641. The Resolution stated: "That in all aids given to the king by the Commons, the rate or tax ought not to be altered". and 1678 Ibid. The Resolution stated: "That all aids and supplies, and aids to his Majesty in Parliament, are the sole gift of the Commons ; and all bills for the granting of any such aids and supplies ought to begin with the Commons : and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends,purposes, considerations, conditions, limitations, and qualifications of such grants ; which ought not to be changed or altered by the House of Lords." respectively, the Commons passed two resolutions to curtail the powers of the House of Lords so that only the Commons had the sole right to direct or limit the scope of a Bill regarding taxation and government expenditure. The House of Lords was excluded from altering any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dental to those subjects or any of them. In this Sub-section 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." The use of the expression "means" in the definition of a Money Bill indicates it was exhaustively defined. A Bill would be a Money Bill, if the Speaker of the House of Commons opined that it contains "only" certain specific provisions. Under Section 1(3), when a Money Bill is sent up to the House of Lords and to Her Majesty for assent, it should be endorsed by a certificate of the Speaker of the House of Commons that it is a Money Bill. This Sub-section also provides that before giving his certificate, the Speaker may consult "two members to be appointed from the Chairman's Panel at the beginning of each Session by the Committee of Selection". Therefore, the Speaker has to certify any bill which in his or her opinion falls within the definition of a Money Bill. Any bill containing provisions outside the definition would not be certified as a Money Bill. The Speaker does not certify a Bill until it has reached the form in which it will leave the Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared. Article 17 of the Nehru Report provided a definition of a Money Bill: "17. A money bill means a bill which 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 public revenues or monies, or the variation or repeal of any such charges; the supply, appropriation, receipt, custody, issue or audit of accounts of public money; the raising of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this definition the expression "taxation", "public money" and "loan" respectively do not include any taxation, money or loan raised by local authorities or bodies for local purposes." The definition of a Money Bill in the Nehru Report, was drawn from the Parliament Act, 1911 in Britain. Article 18 of the Report provided that the "question whether a bill is or is not a money bill will be decided by the president of the House of Representatives". The House of Representatives (the Lower House) was provided the final authority to either accept or reject the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) A Bill or amendment making provision-(a) for imposing or increasing any tax; or (b) for regulating the borrowing of money or the giving of any guarantee by the Federal Government, or for amending the law with respect to any financial obligations undertaken or to be undertaken by the Federal Government; or (c) for declaring any expenditure to be expenditure charged on the revenues of the Federation, or for increasing the amount of any such expenditure, shall not be introduced or moved except on the recommendation of the Governor-General, and a Bill making such provision shall not be introduced in the Council of State." Under the 1935 Act, there was no provision for a Speaker's certificate regarding a Financial Bill. Section 38(1) authorized each House to make Rules regulating its procedure and for the conduct of its business, subject to the provisions of the Act. A Financial Bill could be introduced only "on the recommendation of the Governor-General". Section 41 provided a general immunity from judicial review on the "ground of any alleged irregularity of procedure": "41(1). The validity of any proceedings in the Federal Legislature shall not be called in question on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in that House. The powers of the Council of States in the case of Money Bills were restricted to making suggestions for amendment. If these suggestions were, not accepted by the House of the People, or if the Council of States did not return a Bill within thirty days with its suggestions for amendment, the Bill would be 'deemed to have been' passed by both Houses in the form in which it was passed' by the House of the People" and submitted to the President for his assent'." Ibid, at pages 427-428 66. The draft prepared by the Constitutional Advisor provided a definition of a Money Bill, which was inspired by Section 37 of the Government of India Act 1935, Section 53 of the Commonwealth of Australia Constitution Act 1900 The said provision provides: "Powers of the Houses in respect of legislation.Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demandor payment or appropriation of fees for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with the Council of State decides to accede to the request he shall appoint a Committee of Privileges consisting of an equal number of members of Dail Eireann and of Seanad Eireann and a Chairman who shall be a Judge of the Supreme Court: these appointments shall be made after consultation with the Council of State. In the case of an equality of votes but not otherwise the Chairman shall be entitled to vote. 4. The President shall refer the question to the Committee of Privileges so appointed and the Committee shall report its decision thereon to the President within twenty-one days after the day on which the Bill was sent to Seanad Eireann. 5. The decision of the Committee shall be final and conclusive. 6. If the President after consultation with the Council of State decides not to accede to the request of Seanad Eireann, or if the Committee of Privileges fails to report within the time hereinbefore specified the certificate of the Chairman of Dail Eireann shall stand confirmed." (Emphasis supplied) 67. The draft prepared by the Advisor to the Constituent Assembly did not adopt the above provision in its entirety. It adopted the part on the finality of the certification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, NUJS Law Review (2017) The deviation from incorporating the language, used in the 1911 Act, into the Indian Constitution is reflective of the intention of our Constitution makers that they did not want to confer the same status on the power assigned to the Speaker of the Lok Sabha, as is provided to the Speaker of the House of Commons. Had their intention been otherwise, they would have used the same language as that provided under the 1911 Act. Finality would operate as between the Houses of Parliament. It did not exclude judicial review by a constitutional Court. 69. The British legal system adopts the principle of parliamentary sovereignty. That is not so in India. Ours is a system founded on the supremacy of the Constitution. Judicial review is an essential component of constitutional supremacy. A Constitution Bench of this Court in Kalpana Mehta v. Union of India (2018) 7 SCC 1 has, while noticing this distinction, held: "...The fundamental difference between the two systems lies in the fact that parliamentary sovereignty in the Westminster form of government in the UK has given way, in the Indian Constitution, to constitutional supremacy. Constitutional supremacy mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decision of the Speaker of the Lok Sabha in certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles. Nor can such a decision of the Speaker take leave of constitutional morality. 71. Our Constitution does not provide absolute power to any institution. It sets the 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 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, as mentioned earlier, from Article 22 of the Irish Constitution. The provisions of Article 22 of the Irish Constitution provide a mechanism for review of the certificate issued by the Speaker. 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under article 243ZA shall not be called in question in any court." and 329(a) specifically use the phrase-"shall not be called in question in any court". For instance, Article 329(a) provides thus: "Notwithstanding anything in this Constitution -- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made Under Article 327 or Article 328, shall not be called in question in any court. (Emphasis supplied) 73. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem District 1952 SCR 218, a six judge Bench of this Court, while construing the provisions of Article 329, compared it to the preceding Articles, and held thus: "5. ...A notable difference in the language used in Articles 327 and 328 on the one hand, and Article 329 on the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution", the last Article begins with the words "notwithstanding anything in this Constitution". It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament Under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence...Appreciation of evidence is entirely left to the President and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion." Ibid, at page 397 The President was held to perform a judicial function in making a determination Under Article 217(3). The question of finality Under Article 311(3) was dealt with by a Constitution Bench of this Court in Union of India v. Tulsiram Patel (1985) 3 SCC 398. The Court held that the finality given to the decision of the disciplinary authority by Article 311(3) that it is not reasonably practicable to hold an enquiry, is not binding upon the Court so far as its power of judicial review is concerned. The constitutional validity of the provisions contained in the Tenth Schedule to the Constitution came up for consideration before a Constitution Bench of this Court in Kihoto Hollohan v. Zachillhu (1992) Supp (2) SCC 651. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion where finality has been attached to a judicial, administrative or quasi-judicial power. However, a Clause on finality notwithstanding, it is open to the constitutional court to determine as to whether there has been a violation of a constitutional mandate as a result of which the decision suffers from a constitutional infirmity. The entrustment of a constitutional function to the Speaker Under Article 110(3) to certify a Bill as a Money Bill is premised on the fulfilment of the norms stipulated in Article 110(1). A certification can be questioned on the ground that the Bill did not fulfil the conditions stipulated in Article 110(1) to be designated as a Money Bill. If that is established, the certification would be contrary to constitutional mandate. Whether that is so can be judicially scrutinized. 75. The notion that an entrustment of power is absolute has a colonial origin. Law under a colonial regime was not just an instrument to maintain order but was a source of subordination. Recognition of the vesting of absolute authority was but a reflection of the premise that those who ruled could not be questioned. Those who were ruled had to accept the authority of the ruler. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the Rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the Rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy. The court's interpretation of the power to frame ordinances, which originates in the executive arm of government, cannot be oblivious to the basic notion that the primary form of law making power is through the legislature.... "Ibid, at pages 76-77 (Emphasis supplied) The ordinance making power was held to be an exceptional power to meet a "constitutional necessity". 76. The marginal note to Article 122 is: "Courts not to inquire into proceedings of Parliament". The Article reads thus: "122. (1) The validity of any proceedings in Parliament shall not be called in question on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he procedure contemplated Under Articles 118 to 122 is distinct from substantive constitutional requirements. The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere matter of "procedure" contemplated Under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker, if it is contrary to constitutional norms provided Under Article 110. The Court, in the exercise of its power of judicial review, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review, if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review Under Article 122. It is only limited to an "irregularity of procedure". 78. This Court has on several occasions restricted the scope of the bar provided Under Article 122 (and under corresponding Article 212 for the States) and has distinguished an "irregularity of procedure" from "illegality". In Special Reference No. 1 of 1964 AIR 1965 SC 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality or unconstitutionality in the procedure of Parliament: "386. ...Any attempt to read a limitation into Article 122 so as to restrict the court's jurisdiction to examination of the Parliament's procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of "expressio unius est exclusio alterius" (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of "irregularity of procedure" does not make taboo judicial review on findings of illegality or unconstitutionality... Ibid, at page 359 398. ... the Court will decline to interfere if the grievance brought before it is restricted to allegations of "irregularity of procedure". But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105. Ibid, at page 362" The Court distinguished the constitutional background in India from that of England, holding that while England has adopted a regime of exclusive parliamentary dominanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey Bill ought to have been, but was not, followed. The Constitution Bench dismissed the appeal, holding that the substitution of a new coinage i.e. naya paisas in place of annas, pice and pies did not amount to an enhancement of tax. It was held to be merely a substitution of one coinage by another of equivalent value. This Court held that the levy of tax in terms of naya paisas was not unconstitutional nor was it a taxing measure but it dealt merely with the conversion of the old coinage into new coinage. Having held this, the Bench also remarked: "5. ...Even assuming that it is a taxing measure its validity cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202 of the Constitution. Article 212 prohibits the validity of any proceedings in a legislature of a State from being called in question on the ground of any alleged irregularity of procedure and Article 255 lays down that requirements as to recommendation and previous sanction are to be regarded as matters of procedure only..." The Court having found that a substitution of coinage did not result in an enhancement of tax, Article 199 was not attracted. The legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof when the Bill is pending in the State Legislature and before it becomes an Act". It relied upon the observations made in Mangalore Beedi, to formulate following principles: "(i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business." The judgment also made a reference to the seven judge Bench decision in Pandit MSM Sharma v. Dr Shree Krishna Sinha AIR 1960 SC 1186 ("MSM Sharma"). The "proceedings of the Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been held in the Special Reference No. 1 of 1964 (supra) 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 (supra) and hence, we unhesitatingly hold that there is no merit in the submission so assiduously urged by the learned Counsel for the Appellants." Ibid, at page 229 Special Reference No. 1 of 1964 was distinguished in Yogendra Kumar. Article 255 provides: "No Act of Parliament or of the Legislature of a State, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given-- (a) where the recommendation required was that of the Governor, either by the Governor or by the President; (b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President; (c) where the recommendation or previous sanction required was that of the President, by the President." 82. Article 255 speaks about a situation where a "recommendation or previous sanction" is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lok Sabha whether a Bill is a Money Bill impacts directly upon the constitutional role which will be discharged by the Rajya Sabha in relation to it. The Lok Sabha alone does not represent Parliament. The Indian Parliament is bicameral. The Constitution envisages a special role for the Rajya Sabha. In order to truly understand the relevance of the Rajya Sabha in the Indian context, an analysis of major bicameral systems is necessary, as an exercise in comparative law. 84. Bicameral legislatures are not unique to either the Presidential or Parliamentary forms of government. Democracies with a Presidential form of government have adopted bicameral legislatures, the United States being the leading example. Among Parliamentary democracies, India and the UK have adopted bicameral legislatures. They are predominant in federal countries. Where second chambers exist, they vary in terms of powers and composition. Together, their powers and composition shape the impact that they have on legislation. Fathali M. Moghaddam, The SAGE Encyclopaedia of Political Behaviour (2017). The phenomenon of the bicameral system has two different historic origins. It was first established in England, and la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Legislatures: An International Comparison, Ministry of the Interior and Kingdom Relations- Netherlands (2015), at page 8 The legislature in the United States was innovative, for it created a bicameral arrangement that replaced a class basis (as was in existence in Britain) for chamber representation with a modified federal basis. The Constitutional Convention of 1787 had provided for a lower chamber, a directly-elected House of Representatives, where each voter had an equal vote in elections, and an upper chamber, a Senate, to which each state could send two members, elected indirectly by the state parliaments. The Convention was a compromise between those who wanted a parliament in which the states, irrespective of their population size, would have an equal voice, and those who wanted a Parliament for the newly formed federal nation where the participating states were represented in proportion to the size of their population. A system with two differently composed chambers was ultimately chosen to be the only way out of the deadlock. Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom Relations- Netherlands (2015), at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interests of the country, and thus help to avoid legislative mistakes; and (d) it can be a factor for stability that ensures continuity in the administration of the country. 86. Bicameralism, in both systems, emerged as a development associated with the changing conceptions of the state. The literature on bicameralism has highlighted the importance of having a second chamber in the legislature of a state. William Riker has emphasized that a bicameral structure acts as a control over the tyranny of a majority.165 Levmore similarly echoes this thought: "At the very least, if the two chambers consider an issue simultaneously, one chamber's agenda setter will be at the mercy of the order of consideration in the second chamber. Bicameralism can thus be understood as an antidote to the manipulative power of the convenor, or agenda setter, when faced with cycling preferences. Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, International Review of Law and Economics (1992), Vol. 12, at pages 147-148. A study Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry of the Interior and Kingdom Relations- Netherlands (2015). commissioned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in a democracy, a second chamber addresses the inability of the elected chamber to adequately represent a diverse society. In this view, a second chamber may enable a "more nuanced and complete representation of society, with greater representation for territorial, communal or other minorities".Elliot Bulmer, Bicameralism, International Institute for Democracy and Electoral Assistance (2017), at page 4 While discussing the advantage of second chambers in republican legislatures, Rogers observes that the institution of a second chamber generates legislative advantage only "if the chambers differ significantly from one another".James R. Rogers, The Advantage of Second Chambers in Republican Legislatures: An Informational Theory, at page 6, available at https://ecpr.eu/Filestore/PaperProposal/beb20221-c2c5-4475-9b9f-74bb3f1512a7.pdf Quoting from the work of various scholars, he observes: "Hammond and Miller find that "The stability-inducing properties of bicameralism are... dependent on the existence of distinctly different viewpoints in the two chambers"... Buchanan and Tullock conclude similarly that, "unless the bases for representation are significantly different in the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were to bring popular opinion into the halls of government, and, by the method of bringing it there, to show Indians that although they were many peoples, they were but one nation. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at pages180 & 203 89. Article 80 of the Constitution deals with the composition of the Rajya Sabha. The maximum strength of this chamber is 250 members, out of which up to 238 members are elected representatives from the states and union territories. 12 members are nominated by the President among persons with a special knowledge or practical experience in literature, science, art and social service. Members representing the states are elected by the state legislatures through proportional representation by means of a single transferable voteArticle 80(4), The Constitution of India. The method of electing representatives from Union territories has been left to prescription by Parliament. Article 80(5), The Constitution of India In a departure from the American model of equal representation for the states, the allocation of seats in the Rajya Sabha to the States and Union territories is in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rajya Sabha as an integral element: "First and foremost, Parliament (the Central Legislature) is dependent upon the States, because one of its Houses, the Council of States, is elected by the Legislative Assemblies of the States. Where the ruling party, or group of parties, in the House of the People has a majority but not an overwhelming majority, the Council of States can have a very important voice in the passage of legislation other than financial Bills. Secondly, a Bill to amend the Constitution requires to be passed by each House of Parliament separately by an absolute majority in that House and by not less than two-thirds of those present and voting. Since the Council of States is indirectly elected by the State Legislatures, the State Legislatures have an important say in the amendment of the Constitution because of the requirement of special majorities in each House. Thirdly, the very important matters mentioned in the proviso to Article 368 (Amendment of the Constitution) cannot be amended unless the amendments passed by Parliament are ratified by not less than half the number of Legislatures of the States... Fourthly, the amendment of Article 352 by the 44th Amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest to create one or more All India Services common to the Union and the States, Parliament has the power to create by law such services; and (iii) Under the Constitution, President is empowered to issue Proclamations in the event of national emergency (Article 352), in the event of failure of constitutional machinery in a State (Article 356), or in the case of financial emergency (Article 360). Normally, every such Proclamation has to be approved by both Houses of Parliament within a stipulated period. Under certain circumstances, however, Rajya Sabha enjoys special powers in this regard. If a Proclamation is issued at a time when the dissolution of the Lok Sabha takes place within the period allowed for its approval, then the Proclamation can remain effective if a resolution approving it, is passed by Rajya Sabha." 92. The Rajya Sabha is a permanent body as it is not subject to dissolution.1Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms and one-third of the members retiring every 2 years. Being an indirectly elected House, it has no role in the making or unmaking of the Government and therefore it is comparatively "free f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce based on constitutional principle. The decision of the Speaker on whether a Bill is a Money Bill is not a matter of procedure. It directly impacts on the role of the Rajya Sabha and, therefore, on the working of the federal polity. 94. There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a co-ordinate institution in a bicameral legislature. 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. 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 federal features of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Bill if it contained provisions dealing with Clause (a) to (g), even if it contained other provisions not relatable to these clauses. We cannot rewrite the Constitution, particularly where it is contrary to both text, context and intent. 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 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 contains "only provisions" dealing with all or any of the matters listed Under Sub-clauses (a) to (g) of Article 110(1). 96. A Financial Bill is different from a Money Bill. Article 117 provides for special provisions relating to Financial Bills. Clause (1) of Article 117 states: "(1) A Bill or amendment making provision for any of the matters specified in Sub-clauses (a) to (f) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is but I think this aspect of the Article should be borne in mind." Constituent Assembly Debates (20 May 1949) (Emphasis supplied) Another member Naziruddin Ahmad also emphasized on the deletion of the word "only". The concern of these two members was that the word "only" restricts the scope of a Bill being passed as a Money Bill. Their apprehension was that if a Bill has other provisions which are unrelated to the clauses mentioned in draft Article 90, the Bill would not qualify to be a Money Bill in view of the word "only". The amendment suggested by these members was listed to be put to vote on a later date. The amendment was rejected when it was put to vote on 8 June 1949. The framers of the Indian Constitution consciously rejected the said amendment. 98. When a Bill is listed as a Money Bill, it takes away the power of the Rajya Sabha to reject or amend the Bill. The Rajya Sabha can only make suggestions to a Money Bill, which are not binding on the Lok Sabha. The Constitution makers would have been aware about the repercussions of a Bill being introduced as a Money Bill. As the role of the Rajya Sabha is limited in the context of Money Bills, the scope of what constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the force and effect of law simply because of the existence of circumstances which can brook no delay in the formulation of legislation. In a parliamentary democracy, the government is responsible collectively to the elected legislature. The subsistence of a government depends on the continued confidence of the legislature. The ordinance making power is subject to the control of the legislature over the executive. The accountability of the executive to the legislature is symbolised by the manner in which the Constitution has subjected the ordinance making power to legislative authority. This, the Constitution achieves by the requirements of Article 213..." Ibid, at page 61 99. The authority of the Lok Sabha to pass a Money Bill is based on the requirements set out Under Article 110. The framers of the Indian Constitution deliberately restricted the scope of Article 110(1) to ensure that the provision is not an avenue to supersede the authority of the Rajya Sabha. The intention of the Constitution makers is clear. The Lok Sabha cannot introduce and pass a legislative measure in the garb of a Money Bill, which could otherwise have been amended or rejected by the Rajya Sabha. Bicame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iduals and for matters connected therewith or incidental thereto." The Preamble focuses on the delivery of subsidies, benefits and services for which the expenditure is borne from the Consolidated Fund of India. But the essential issue is whether the Act confines itself to matters which fall within the ambit of Article 110. 102. Section 3 entitles every resident Section 2(v) provides: "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. in India to obtain an Aadhaar number by submitting his or her demographic information, by undergoing the process of enrolment. Section 2(m) defines "enrolment" as the process to collect demographic and biometric information from individuals by the enrolling agencies for the purpose of issuing Aadhaar numbers to such individuals. After receiving the demographic and biometric information of the individual, the Unique Identification Authority of India (UIDAI) would verify the information and shall issue an Aadhaar number to such an individual. Section 3(3), Aadhaar Act Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it is only used for submission to the CIDR for authentication. Section 8(3) requires a requesting entity to inform the individual submitting identity information for authentication certain details with respect to authentication. 104. Chapter IV of the Act deals with UIDAI. Section 11 establishes UIDAI as the body responsible for the processes of enrolment and authentication and for performing functions assigned to it under the Act. The Act provides for the composition of UIDAI Section 12, Aadhaar Act, qualifications of its members Section 13, Aadhaar Act, terms of office Section 14, Aadhaar Act of its chairperson and members, their removal Section 15, Aadhaar Act and functions Section 17, Aadhaar Act. Section 23, which deals with the powers and functions of UIDAI, authorizes it to develop the policy, procedure and systems for issuing Aadhaar numbers to individuals and to perform authentication. Section 23(h) states that UIDAI has the power to specify 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 Section 23(3), UIDAI may enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of policy given by the Central Government. Section 51 authorizes the UIDAI to delegate to any member, officer of the Authority or any other person, such of its powers and functions (except the power Under Section 54) as it may deem necessary. Section 53 empowers the Central Government to make Rules to carry out the provisions of the Act. Under Section 54(2)(m), UIDAI can make Regulations providing 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. Section 57 authorizes the State or any body corporate or person to use an Aadhaar number for establishing the identity of an individual "for any purpose", subject to the procedure and obligations Under Section 8 and Chapter VI of the Act. Section 59 seeks to validate the actions taken by the Central Government pursuant to the notifications dated 28 January 2009 and 12 September 2015, and prior to the enactment of the Aadhaar Act. This 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 submitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national security in pursuance of a direction of an officer (not below the rank of Joint Secretary to the Government of India). Sections 34 to 47 deal with substantive offences and penalties created under the Act. Sections 54(2)(m) states that Regulations can be made by UIDAI 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 used. Section 57 authorizes the use of Aadhaar number by anyone (whether by the State or any body corporate or person under law or contract) for establishing the identity of an individual "for any purpose". 108. Section 7 makes the use of the Aadhaar number mandatory for availing subsidies, benefits or services, for which expenditure is incurred from the Consolidated Fund of India. The scheme of the Act deals with several aspects relating to the unique identity number. The unique identity is capable of being used for multiple purposes: availing benefits, subsidies and services, for which expenses are incurred from the Consolidated Fund of India, is just one purpose, among others. The Preamble to the Aadhaar Act indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made mandatory to avail of them. Section 7, in other words, is a provision for imposing a requirement of authentication and not declaring any expenditure to be a charge on the Consolidated Fund of India. 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 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). Introducing one provision-Section 7-does not render the entirety of the Act a Money Bill where its other provisions travel beyond the parameters set out in Article 110. 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 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the Authority shall be credited to the Consolidated Fund of India and the entire amount would be transferred to the Authority. Chapter V (Clauses 28 and 29) dealt with creation of an Identity Review Committee and its functions. The functions of the Review Committee included ascertaining the extent and pattern of usage of Aadhaar numbers across the country and preparing a report annually along with recommendations. Chapter VI (Clauses 30 to 33) dealt with the protection of individual identity information and authentication records. Clause 30(1) required the Authority to ensure the security and confidentiality of identity information and authentication records of individuals. Clause 30(2) required the Authority to take measures (including security safeguards) to ensure 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 any loss or unauthorised access or use or unauthorised disclosure. Clause 33 stated that individual information may be disclosed pursuant a court order or in the interest of national security. Chapter VII (Clauses 34 to 46) created offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities and other social consequences; (v) The UID scheme lacks clarity on many issues including even the basic purpose of issuing an "Aadhaar" number. Although the scheme claims that obtaining an Aadhaar number is voluntary, an apprehension has developed in the minds of people that in future, services/benefits including food entitlements would be denied in case they do not an have an Aadhaar number; (vi) It is also not clear as to whether possession of an Aadhaar number would be made mandatory in future for availing of benefits and services. Even if the Aadhaar number links entitlements to targeted beneficiaries, it may not ensure that beneficiaries have been correctly identified. Thus, the present problem of proper identification would persist; (vii) Though there are significant differences between the identity system of other countries and the UID scheme, yet there are lessons from the global experience to be learnt before proceeding with the implementation of the UID scheme, which the Ministry of Planning has ignored completely; (viii) Considering the huge database and possibility of misuse of information, the enactment of a national data protection law is a pre-requisite fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Bill, 2010 was not acceptable. The Committee urged the Government to reconsider and review the UID scheme and the proposals contained in the Bill and bring forth a fresh legislation before Parliament. Ultimately, the NIA Bill was withdrawn from the Rajya Sabha on 3 March, 2016. 112. A comparison of the Aadhaar Act 2016 and NIA Bill 2010 reveals that both have a common objective and framework-establishing a system of unique identity numbers, which would be implemented and monitored by a statutory authority. The NIA Bill was not a Money Bill. It was never passed by the Rajya Sabha. The Bill was scrutinized by a Standing Committee on Finance, which had 10 members from the Rajya Sabha and 21 from the Lok Sabha. The NIA Bill did not contain a provision, similar to Section 7 of the Aadhaar Act. Yet, as discussed earlier, the presence of Section 7 does not make the Aadhaar Act a Money Bill. Introducing the Aadhaar Act as a Money Bill deprived the Rajya Sabha of its power to reject or amend the Bill. Since the Aadhaar Act in its current form was introduced as a Money Bill in the Lok Sabha, the Rajya Sabha had no option other than of making recommendations to the Bill. The recomme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the topics on which the Centre and the States could legislate, some overlapping of the fields of legislation is inevitable. The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two Sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence...." (Emphasis supplied) The decision of a three judge Bench of this Court in State of Maharashtra v. Bharat Shanti Lal Shah (2008) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all Under Sub-clauses (a) to (g). The Constitution says to the contrary: a Bill is a Money Bill if it contains "only provisions" dealing with one or more of the matters set out in Sub-clauses (a) to (g). Looked at in another way, all the provisions of the Aadhaar Act (apart from Section 7) cannot be read as incidental to Section 7. Such a view is belied by a plain reading of the Act, as indicated earlier. Moreover, we have also indicated reasons why even Section 7 cannot be held to be referable to Article 110. Section 7 does not deal with the declaring of any expenditure as expenditure charged to the Consolidated Fund. Section 7 allows for making Aadhaar mandatory for availing of subsidies, benefits or services the expenditure incurred on which is charged to the Consolidate Fund. Section 7 does not charge any expenditure to the Consolidated Fund. It deals with making Aadhaar mandatory. In support of their contention, the Respondents have also relied upon a two judge Bench decision in Union of India v. Shah Goverdhan L Kabra Teachers' College (2002) 8 SCC 228 to submit that the doctrine of pith and substance can be used in any context. The Court held: "7. It is further a well- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument that the Aadhaar Act is "in pith and substance" a Money Bill is rejected. 116. Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments. On the touchstone of the provisions of Article 110, the Bill could not have been certified as a Money Bill. In his last address to the Constituent Assembly on 25 November 1949, Dr B R Ambedkar had stated: "The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics." Constituent Assembly (25 November 1949) 117. 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 legitim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature and voice). 119. The idea that parts of our body can be used to identify our unique selves is not new. Prints of hand, foot and finger have been used since ancient times because of their unique characteristics. Before the advent of biometric systems, however, human characteristics were compared in a manual way. Today's biometric systems hence differ from manual verification methods in that technology allows for automated comparison of human characteristic(s) in place of a regime of manual verification that existed earlier. It must be understood that biometric systems themselves do not identify individuals. For identification, additional information which is already stored in databases is needed since biometric systems can only compare information which is already submitted. Ibid. Integral to such a system is the matching of a claim of identity with biometric data collected and stored earlier. In general, biometric applications are referred to as systems which allow one to authenticate claims. The verb 'to authenticate' can be described as 'making authentic, legally valid'. Ibid. Originally, fingerprints were the most commonly known and used biometric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to privacy and other human rights. Ibid Simon Davies, an eminent privacy expert, points out that it is not an accident or coincidence that biometric systems are most aggressively tried out with welfare recipients since they are not in a position to resist the State-mandated intrusion. Simon Davies, as cited in John D. Woodward, Biometric Scanning, Law & Policy: Identifying the Concerns - Drafting the Biometric Blueprint, University of Pittsburgh Law Review, (1997) There has been a particular increase in the use of biometric technology in identification programs in developing countries. This is because "biometrics include a wide range of biological measures which are considered sufficiently unique at a population level to allow individual identification with high rates of accuracy".Daniel M. L Storisteanu, Toby L. Norman, Alexandra Grigore and Alain B. Labrique, Can biometrics beat the developing world's challenges?, Biometric Technology Today (2016) Lack of formal identification and official identity documentation in the developing world is a serious challenge which impedes the ability of governments as well as development organisations to provide essential goods and servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , liberty and other fundamental freedoms will be misunderstood, eroded or devalued. Ibid 123. Privacy has been recognized as a fundamental human right in various national constitutions and numerous global and regional human rights treaties. In today's digital age, the right to privacy is "the cornerstone that safeguards who we are and supports our on-going struggle to maintain our autonomy and self-determination in the face of increasing state power." Privacy International, Biometrics: Friend or foe of privacy?, available at https://privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf 124. 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. Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013) The Aadhaar Act 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 individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s breach of integrity and privacy. It indicates that there may be a presumption that someone is guilty until proven innocent. This would be contrary to generally accepted legal doctrine that a person is innocent until proven guilty and will bring a lot of innocent people into surveillance schemes. 127. 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 people of specific cultural or religious backgrounds, even the mental harm resulting from physical intrusion maybe quite serious. Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013). Another concern is that the widespread usage of biometrics substantially undermines the right to remain anonymous Ibid People desire anonymity for a variety of reasons, including that it is fundamental to their sense of freedom and autonomy. Anonymity may turn out to be the only tool available for ordinary people to defend themselves against being profiled. Thus, it is often argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s learnt from history. 129. It is important to justify the usage of biometric technology given the invasion of privacy. When the purpose of collecting the biometric data is just for authentication and there is little or no benefit in having stronger user identification, it is difficult to justify the collection of biometric information. The potential fear is that there are situations where there are few or no benefits to be gained from strong user verification/identification and this is where biometric technology may be unnecessary.208 (Example: When ascertaining whether an individual is old enough to go to a bar and drink alcohol, it is unnecessary to know who the person is, when all that is needed to be demonstrated is that the individual is of legal age). Fundamental rights are likely to be violated in case biometrics are used for applications merely requiring a low level of security. 130. Biometric data, by its very nature, is intrinsically linked to characteristics that make us 'humans' and its broad scope brings together a variety of personal elements. It is argued that the collection, analysis and storage of such innate data is dehumanising as it reduces the indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Position before the Aadhaar legislation Summary of Pre-Enactment Events 133. On 3 March 2006, the Department of Information Technology, Ministry of Communications & Information Technology, gave its approval for implementation of the project 'Unique ID for Below Poverty Line Families' (BPL) by the National Informatics Centre over a period of 12 months. Ministry of Communication & Information Technology, Department of Information Technology, AdministrativeApproval for the project - "Unique ID for BPL families", dated March 03, 2006 (Annexure R-1, List of Preenactment dates and events for the Aadhaar project submitted by the Learned AG). This was followed by a Processes Committee being set up a few months later on 3 July 2006, to suggest the processes for updation, modification, addition and deletion of data from the core database to be created under the Unique ID ("UID") for BPL Families Project. Department of Information Technology, Notification: Setting up of a Process Committee to suggest the processes for updation, modification, addition & deletion of data and fields from the core database to be created under the Unique ID for BPL families project, dated July 03, 2006 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent feasible, while it was also resolved that the data collected under the NPR would be handed over to the UID Authority for maintenance and updation. The EGoM, in its fourth meeting dated 4 November 2008 decided that initially, the UIDAI will be established as an executive body under the Planning Commission for a period of 5 years. UIDAI, it was envisaged, will create its database from the electoral roll of the ECI and verify it through Below Poverty Line and Public Distribution System data, but it would also have the authority to take its own decisions as to how a database should be built.221 Consequently, the Government of India issued a notification on 28 January 2009 constituting the UIDAI as an attached office and executive authority under the aegis of the Planning Commission. 134. Following the constitution of UIDAI, the Secretary, Planning Commission addressed a letter to Chief Secretaries of all States/UTs on 6 May 2009 enclosing a brief write up on UIDAI and UID numbers for resident Indians. The letter included the concept, implementation strategy, model of the project along with the role and responsibilities of the states/UTs. Secretary, Government of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the UID system, is correct. 136. The DDSVPC in its report dated 9 December 2009, stated that UIDAI had selected biometrics features as the primary method to check for duplicate identity. In order to ensure that an individual was uniquely identified in an easy and cost-effective manner, it was necessary to ensure that the captured biometric information was capable of carrying out de-duplication at the time when information was collected. Ibid, at page 4 The Know Your Resident ("KYR") verification procedure was introduced to ensure that "key demographic data is verified properly so that the data within UID system can be used for authentication of identity by various systems". Three distinct methods of verification were to be acceptable under UID. Verification could be based on: * Supporting documents; * An introducer system under which a network of "approved" introducers can introduce a resident and vouch for the validity of the resident's information; and (This idea was borrowed from the account opening procedure in the banks.) * The process adopted for public scrutiny in the National Population Register. 137. In order to verify the correctness of certain mandatory fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (BSC) Report 139. BSC in its report dated 30 December 2009 stated that it held extensive meetings and discussions with international experts and technology suppliers. A technical sub-group was formed to collect Indian fingerprints and analyze quality. Over 2,50,000 fingerprint images from 25,000 persons were sourced from the districts of Delhi, UP, Bihar and Orissa. Nearly all the images were from rural regions, and were collected by different agencies using different capture devices, and through different operational processes. The BSC report is silent about the pretext on which fingerprints of 25,000 people were collected. This action of UIDAI raises privacy concerns especially since the fingerprints were collected from rural regions where people may not have been aware or made aware by UIDAI before collection of fingerprints, of the possible privacy harms of giving up biometrics. BSC after reviewing international standards and current national recommendations, concluded that a fingerprints-based biometric system was to be at the core of UIDAI's de-duplication efforts and that the ISO 19794 series of biometrics standards for fingerprints, face and iris set by the Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal-Identity.pdf, at page 22 Proponents of the program argue that in all fairness to UIDAI, it has to be noticed that the ISO 24745 standard was published in August 2011 whereas the report of BSC had already been submitted to UIDAI in January 2010. However, Mr. Myung Geun Chun, the Project Editor of ISO 24745, is reported to have stated that ISO 24745 standard is an 'invaluable tool' for addressing 'unique privacy concerns' like 'unlawful processing and use of data' raised by biometric identification because of its binding nature 'which links biometrics with personally identifiable information'. Katie Bird, Is your biometric data safe online? ISO/IEC standard ensures security and privacy, (11 August 2011), available at https://www.iso.org/news/2011/08/Ref1452.html. ISO 24745 seeks to "safeguard the security of a biometric system and the privacy of data subjects with solid countermeasures".Ibid. ISO 24745 standard specifies: * "Analysis of threats and countermeasures inherent in biometric and biometric system application models; * Security requirements for binding between a biometric reference and an identity reference; * Biometric system applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, according to the report, UIDAI was to concern itself only with identity fraud and any grievances in respect of document fraud (counterfeit/misleading documents) were to be left to the Registrar enrolling the resident. Ibid, at page 34 141. The following conclusions emerge from the UIDAI's strategy overview: Firstly, the UIDAI was aware of the importance of biometric information before the Aadhaar programme had been rolled out. Secondly, UIDAI had itself contemplated a scenario of identity theft which could occur at the time of enrollment for Aadhaar cards. However, it had no solution to the possible harms which could result after the identity theft of a person, more so when the potential 'UIDAI Act' was still in the pipeline and was not eventually enacted until 2016. C. Registrars 142. The term 'Registrar' was first defined by UIDAI in its DDSVPC Report as "any government or private agency that will partner with UIDAI in order to enroll and authenticate residents".239 In the Strategy Overview, the term was defined as "agencies such as central and state departments and private sector agencies who will be 'Registrars' for the UIDAI".DDSVPC (UIDAI), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o define how the data will be used and how it will be kept secure. UIDAI, "Aadhaar Handbook for Registrars, available at http://doitc.rajasthan.gov.in/administrator/Lists/Downloads/Attachments/26/aadhaar_handbook_version. pdf, at page 11 In the 'Aadhaar Handbook for Registrars 2013' ("2013 Handbook"), it was stated that "UIDAI has defined security guidelines for the storage of biometric data".Annexure R-74, Volume III, List of Pre-enactment dates and events for the Aadhaar project, Submissions by the AG. While it is indicated in the handbook that guidelines for storage were defined by UIDAI, it is evident that this took place only after 2010 before which the registrars were functioning without guidelines mandating how the biometric data was to be kept secure. The following guideline finds mention both in the Handbook of 2010 and 2013: "In the interest of transparency, it is recommended that the Registrar inform the resident that they will be keeping the biometric data and also define how the data will be used and how it will be kept secure. "UIDAI (Planning Commission), Aadhaar Handbook for Registrars (2010), available at http://indiamicrofinance.com/wp-content/uploads/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pdate and no other purpose".UIDAI, Roles and Responsibilities of Enrolment Staff, available at https://idai.gov.in/images/annexure_b_roles_and_responsibility_of_enrolment_staff. Pdf , at page 8 However, in the UIDAI document titled 'Enrollment Process Essentials, 2012', there is no mention of any such obligation being placed upon the enrolment staff. UIDAI, Enrolment Process Essentials (13 December 2012), available at http://www.nictcsc.com/images/Aadhaar%20Project%20Training%20Module/English%20Training%20Module/ module2_aadhaar_enrolment_process17122012. pdf In the absence of informed consent for the collection of data, a shadow of potential illegality is cast. F.4 Privacy Concerns in the Aadhaar Act 1. Consent during enrolment and authentication & the right to access information under the Aadhaar Act 145. Section 3(2) of the Aadhaar Act requires enrolment agencies to inform the individual being enrolled about: a) the manner in which information shall be used; b) the nature of recipients with whom the information is to be shared during authentication; and c) the existence of a right to access information. However, the Enrolment Form in Schedule I of the Enrolment Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity information for the purpose of authentication, and Regulation 6 mandates that the requesting entity shall obtain the consent of the Aadhaar number holder for 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 does not provide consent. This is a significant omission. Measures for providing alternatives must be defined in all identity systems, particularly those that are implemented on a large scale. 2. Extent of information disclosed during authentication & sharing of core biometric information 147. Section 8(4) of the Act permits the Authority to respond to an authentication query with a "positive, negative or any other appropriate response sharing such identity information excluding any core biometric information". The Petitioners have argued that the wide ambit of this provision gives the Authority discretion to respond to the requesting entity with information including an individual's photograph, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified by the Regulations. The language of this Section is overbroad and which could lead to transgressions and abuse of power. 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 as provided to core biometric information. 3. Expansive scope of biometric information 149. Definitions of biometric information [Section 2(g)], core biometric information [Section 2(j)] and demographic information [Section 2(k)] under the Aadhaar Act are inclusive and expansive. Section 2(g) defines 'biometric information' as "photograph, fingerprint, iris scan, or such other biological attributes of an individual as may be specified by Regulations". Section 2(j) defines 'core biometric information' as "fingerprint, Iris scan, or such other biological attribute of an individual as may be specified by Regulations". Section 2(t) explains that the Regulations are to be made by UIDAI, which is the supreme authority under the Act. Sections 2(g), (j), (k) and (t) give discretionary power to UIDAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng situations. These problems also apply to other relatively stable biometric identifiers. Ibid, at page 100 151. Sections 6 Section 6 states: "The Authority may require Aadhaar number holders to update their demographic information and biometric information, from time to time, in such manner as may be specified by regulations, so as to ensure continued accuracy of their information in the Central Identities Data Repository." and 31(2) tion 31(2) states: "In case any biometric information of Aadhaar number holder is lost or changes subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary alteration in his record in the Central Identities Data Repository in such manner as may be specified by regulation of the Aadhaar Act place an additional onus 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. It is an acknowledgement that an individual's biometric information may change from time to time. Natural factors like ageing, manual labour, injury and illness can cause an individual's biometric information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on? Ibid. This is also evidence of the fact that an Aadhaar enrolment is not a one-time affair. 5. No access to biometric records in database 152. The proviso to Section 28(5) Section 28(5) states: "Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone: Provided that an Aadhaar number holder may request the Authority to provide access to his identity information excluding his core biometric information in such manner as may be specified by regulations."of the Aadhaar Act disallows an individual access to the biometric information that forms the core of his or her unique ID (Aadhaar). The lack of access is problematic for the following reasons: First, verification of whether the biometrics have been recorded correctly or not in the first place is not possible. This becomes critical when that same information forms the basis of ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ca/images/Resources/pri-biom.pdf 155. There is no unique concept of privacy and there maybe trade-offs between privacy and other objectives. Robert Gellman. 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), available at https://www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0. pdf The challenge regarding privacy is best put in the following words: "The definition of privacy in any jurisdiction must take into account cultural, historical, legal, religious and other local factors. One size may not fit all countries, regions, or cultures when it comes to privacy or to some elements of privacy. In addition, views of privacy change as time passes and technology advances. However, different perspectives are not a barrier to evaluating privacy but a challenge." Ibid The relationship between biometrics and privacy is completely shaped by the design of the systems and the framework within which private and personal data is handled. Unfortunately, particularly in developing countries the adoption of biometrics has not been accompanie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due to their inherent power, can cause harm when placed into hostile hands and used improperly. Great care must be taken to prevent this misuse. "Do No Harm" requires rigorous evaluation, foresight, and continual oversight. Ibid 157. There are many adversarial actors-from private espionage groups to foreign governments, who may try to exploit data vulnerabilities. There is also the threat of abuse of power by future governments. However, creating and instilling strong privacy protection laws and safeguards may decrease these risks-such as the framework provided by the EUGDPR General Data Protection Regulation, available at https://gdpr-info.eu/. 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. 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 form, the Aadhaar framework does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loomsbury 2017), at page 1 "By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate 'the powers of all men equally for contributions to the common good'." Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) at page 66 (Emphasis supplied) 160. The draftpersons of the Constitution believed that the driving force to bring social change rested with the State. This is evident from an instance during the proceedings of the Constituent Assembly. Dr. B R Ambedkar had submitted to the Assembly a social scheme to be incorporated into the Constitution, which included provisions to cover every adult Indian by life insurance. However, his social scheme was rejected on the ground that such provisions should be left to legislation and need not be embodied into the Constitution. Ibid, at page 99 161. The social and economic goals which were contemplated at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want." Article 43 contemplates a living wage and conditions of work which provide a decent standard of life: "43. The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas." 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. Reflecting a constitutional vision of socio-economic justice, the values adopted in the Directive Principles are to be progressively realised in the course of social and economic development. 162. In a recently published book titled "Supreme Court of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts. It is conceivable at least, that both the Supreme Court and the Government could have pursued their respective tasks without conflict, but this did not happen. The legislatures, purporting to be doing no more than carrying out the duties prescribed in the directive principles, enacted legislation which the Supreme Court found to be in conflict with some of the fundamental rights." Ibid, at pages 195-196 This formulation by Gadbois formed part of a dissertation in April 1965. The evolution of jurisprudence in India since then has altered the Constitutional dialogue. Over time, the values enshrined in the Directive Principles have been read into the guarantees of freedom in Part III. In incremental stages, the realisation of economic freedom has been brought within the realm of justiciability, at least as a measure of the reasonableness of legislative programmes designed to achieve social welfare. 163. As our constitutional jurisprudence has evolved, the Directive Principles have been recognised as being more than a mere statement of desirable goals. By a process of constitutional interpretation, the values contained in them have been adopted as standards of reasonableness to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and interlocked with the rest and, in contradictory combination/recombinations with both the constitutional and social past and their future images".Ibid Development is a leading aspect of our constitutional vision. Development in the constitutional context is not only economic development assessed in terms of conventional indicators such as the growth of the gross domestic product or industrial output. The central exercise of development in a constitutional sense is addressing the "deprivation, destitution and oppression"Amartya Sen, Development as Freedom, Oxford University Press (2000), at page xii that plague an individual's life. 165. In a traditional sense, freedom and liberty mean an absence of interference by the state into human affairs. Liberty assumes the character of a shield. The autonomy of the individual is protected from encroachment by the state. This formulation of political rights reflects the notion that the state shall not be permitted to encroach upon a protected sphere reserved for individual decisions and choices. What the state is prevented from doing is couched in a negative sense. Civil and political rights operate as restraints on state action. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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." In Sen's analysis, human development is influenced by economic opportunities, political liberties, social powers, and the enabling conditions of good health, basic education, and the encouragement and cultivation of initiatives. Taking it further, Sen has recognized an importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The duty to fulfil connotes aiding the deprived in the realisation of rights. This imposes a corresponding duty to create the conditions which will facilitate the realisation of the right. The right which is protected for the individual will also signify an expectation that the state must create institutions enabling the exercise of facilitative measures or programmes of action, of an affirmative nature. The state has affirmative obligations to fulfil in the realisation of rights. These positive duties of the state are readily apparent in the context of welfare entitlements when the state must adopt affirmative steps to alleviate poverty and the major sources of economic and social non-freedom. But the thesis of Nussbaum and Shue have an important role for the state to discharge in ensuring the fulfilment of political rights as well. In a highly networked and technology reliant world, individual liberty requires the state to take positive steps to protect individual rights. Data protection and individual privacy mandate that the state put in place a positive regime which recognises, respects and protects the individual from predatory market places. The state has a positive duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of Justice, Penguin (2009) at pages 379-380or second generation rights. These rights, recognized for the first time under the Universal Declaration on Human Rights, 1948 include a large list of freedoms and claims under its "protective umbrella". They include not only basic political rights, but the right to work, the right to education, protection against unemployment and poverty, the right to join trade unions and even the right to just and favourable remuneration. Ibid, at page 380 Social security programmes as an instrument for the removal of global poverty and other economic and social deprivations are at the centre stage in the global discourse. Article 22 of the Universal Declaration of Human Rights expressly recognises that every member of society is entitled to the right to social security and to the realisation of economic, social and cultural rights. Those rights are stated to be indispensable for dignity and to the free development of personality. The realisation of these rights has to be facilitated both through national efforts and international co-operation and in accordance with the organisation and the resources of each state. Article 22 stipulates that: "Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (a) Taking into account the problems of both food-importing the food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need." 172. The Masstricht Guidelines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant." Similarly, General Comment No. 12 on the right to adequate food was adopted at the twentieth session of the Committee on Economic, Social and Cultural Rights on 12 May 1999. It states: "The Committee observes that while the problems of hunger and malnutrition are often particularly acute in developing countries, malnutrition, under-nutrition and other problems which relate to the right to adequate food and the right to freedom from hunger also exist in some of the most economically developed countries, Fundamentally, the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food, inter alia because of poverty, by large segments of the world's population." The emphasis on the lack of access to available food is significant to the present discourse. It indicates that access to food requires institutional mechanisms to ensure that the avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's living conditions." Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and xi The authors have further observed that apart from education and healthcare, India faces larger issues of accountability in the "public sector as a whole".Ibid, at page xi The lack of progress in public services acts as a huge barrier to improve the quality of life of people. Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33 It has been observed: "The relative weakness of Indian social policies on school education, basic healthcare, child nutrition, essential land reform and gender equity reflects deficiencies of politically engaged public reasoning and social pressure, not just inadequacies in the official thinking of the government." Amartya Sen, The Idea of Justice, Penguin (2009) at page 349 The future of Indian democracy therefore depends on how it engages itself with the issues of accountability in transfer of basic human facilities to the common man. 175. 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 providin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , particularly in inaccessible areas, may not have fixed homes. In many cases, traditional occupations require individuals to move from place to place, dependent on seasonal changes. Then again, groups of citizens including women, children and the differently abled may face significant difficulties in accessing benefits under publicly designed social welfare programmes as a result of factors such as gender, age and disability. 176. Unequal access to welfare benefits provided by the State becomes a significant source of deprivation resulting in a denial of the means to sustain life and livelihood. Before the adoption of Aadhaar based-identity, there were multiple platforms for identification of residents. They created a situation where those with no identity had no access to the means of sustaining a dignified life. Equally significant, as a policy intervention, was the issue of capture. While on the one hand, large swathes of the population had no access to welfare assistance, benefits could be captured by persons not entitled to them either by the assertion of fake or multiple identities. Setting up a fake identity enables an individual to pass off as another and to secure a bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Benefits and Services) Act, 2016. As its Statement of Objects and Reasons explains: "The correct identification of targeted beneficiaries for delivery of various subsides, benefits, services, grants, wages and other social benefits schemes which are funded from the Consolidated Fund of India has become a challenge for the Government. The failure to establish identity of an individual has proved to be a major hindrance for successful implementation of these programmes. This has been a grave concern for certain categories of persons, such as women, children, senior citizens, persons with disabilities, migrant unskilled and unorganised workers, and nomadic tribes. In the absence of a credible system to authenticate identity of beneficiaries, it is difficult to ensure that the subsidies, benefits and services reach to intended beneficiaries." 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 targeted beneficiaries". The architecture of the law contemplates regulating the following aspects: "(a) issue of Aadhaar numbers to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traditional markers of identity. As an instrument for verifying identity, Aadhaar seeks to ensure that social welfare benefits are obtained by 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. The rationale underlying Section 7 is the targeted delivery of services, benefits and subsidies which are funded from the Consolidated Fund of India. In the seven decades since Independence, the Union Government has put into place social welfare measures including the public distribution system, free education, scholarships, mid-day meals and LPG subsidies to ameliorate the conditions of existence of the poor and marginalised. There is a state interest in ensuring that the welfare benefits which the state provides reach those for whom they are intended. G.3 Identity and Identification 179. Identity is inseparable from the human personality. An identity is a statement of who an individual is. Our identities define who we are. They express what we would wish the world to know us as. The human personality is, at a certain level, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right to recognition everywhere as a person before the law". Article 16 of the International Covenant on Civil and Political Rights is in similar terms. Article 8 of the UN Convention on the Rights of the Child mandates that State parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. The importance of identity is recognized by Article 3 of the American Convention on Human Rights. The Inter-American Juridical Committee (IAJC) of the Organisation of American States (OAS) has in fact provided that: "12. The right to identity is consubstantial to the attributes and human dignity. Consequently it is an enforceable basic human right erga omnes as an expression of a collective interest of the overall international community that does not admit derogation or suspension in cases provided in the American Convention on Human Rights. ... 15. The Committee considers that the right to identity is, among its most relevant implications and scope, to constitute an autonomous right that is based on the Regulations of international law and those that derive from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich process and manage information and are using microelectronic based technologies" Manuel Castells, Conversation with Manuel Castells, Globetrotter, available at http://globetrotter.berkeley.edu/people/Castells/castells-con4.html. Manuel Castells, Conversation with Manuel Castells, Globetrotter, available at http://globetrotter.berkeley.edu/people/Castells/castells-con4.html 183. In a networked society, an individual is a data subject and a quantified self. The individual is a data subject since his or her data is stored in a database. Shah notes that there is an ambivalence about whether the data subject is the individual whose identity becomes the basis of validating the data or whether the data subject is the identity of the individual as it gets constructed through data sets. The individual becomes a quantified self where data which is distributed across various systems is "curated" to form a comprehensive profile of an individual. 184. The Aadhaar project was intended to allow a unique identity to enable individuals to "navigate through disconnected and often hostile governmental database systems". Shah notes that ever since 2009, the terms 'identity' and 'iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long as they give the inviolable data of biometric recognition. Thus, the identity of the person being enrolled and registered is almost insignificant and has value only in how it would now always identify the individual through the credentials or information provided. The Aadhaar network governance system is concerned only with the identifiers rather than the narrative, iterative, forms of identity and expression, and this is where we begin examining the ways in which identity is shaped, understood, and used to construct the notion of an individual in computation systems." Ibid 185. Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. That concept is now "flipped" so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual. The submission which has been urged on behalf of the Petitioners is that an individual entitled to the protection of the freedoms and liberties guaranteed by Part III of the Constitution must have the ability to assert a choice of the means of identification for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted towards proof of identity and thirty three documents as proof of address. The Aadhaar Act, it has been contended, allows the resident to identify herself through any of the stipulated documents for the purpose of availing an Aadhaar number. The Aadhaar number can be availed of to secure a subsidy, benefit or service Under Section 7, the expenditure of which is drawn from the Consolidated Fund of India. Article 266 of the Constitution provides as follows: "266. Consolidated Funds and public accounts of India and of the States (1) Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the "Consolidated Fund of India", and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating body that the use of biometrics would render it difficult, if not impossible, to obtain fake identities. Aadhaar, in other words, was adopted as a matter of legislative policy to curb the evil of shell companies and ghost identities. Where the State expends large sums on social welfare projects, it has a legitimate interest in ensuring that the resources which it deploys reach the hands of those for whom they are meant. Thus, there are two important facets of the Aadhaar regime which must be noticed. The first is that Under Section 3, it is a voluntary option of the 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 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 Consolida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite expertise. He states that this exercise "cannot be undertaken in the courts with the assistance of lawyers who equally have no expertise in the field" and that "such an exercise involves research, study by the experts and courts cannot substitute the same". Mr. Gopal Sankaranarayanan, learned Counsel, submits that the means adopted "at the moment" are no more than is necessary for ensuring that the "avowed objects" are served, and that they balance individual interests (fundamental rights) with societal interests (directive principles). He further submits that the fact there are various limitations in place ensure that "some balance" is achieved between the breach of privacy and the object sought to be achieved. This Court must now perform the delicate task of 'balancing' these competing interests by subjecting the Aadhaar Act to the proportionality test. H.I Harmonising conflicting rights 190. In the 2003 edition of his celebrated work, Granville Austin recounts the words of Prime Minister Morarji Desai that freedom and bread are not incompatible, but further adds, 'Neither could they easily be sought together'. Granville Austin, Working a Democratic Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights of man... The expression "human rights" presupposes a level at which biological entities are bestowed with the dignity of being called human. The bearers of human rights must have an implicit right to be and remain human, allowing them some autonomy of choice in planning survival." Ibid, at page 187 Thus, the broader matrix of human rights includes within it the inalienable and fundamental right to always 'be and remain human'. Professor Upendra Baxi notes that this broader debate between human rights and the 'right to be human' is reflective of the bread v. freedom conflict. It is noted that historically, freedom might have been chosen over bread due to the vast enumeration of liberal rights it includes, despite the acute awareness that without bread, freedom of speech and assembly, of association, of conscience and religion, of political participation, symbolic adult suffrage may all be meaningless. Ibid, at page 186 At the same time, Baxi points out the danger in choosing bread at the cost of freedom, given that historically in the absence of freedom, human beings have been subject to the most egregious indignities: "The provision of "bread" may justify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. A conflict will, in such a situation, arise between a right which is asserted Under Article 19(1)(a) by one citizen and the sense of injury of another who claims protection of the right to dignity Under Article 21. Conflicts also arise when the exercise of rights is perceived to impact upon the collective identity of another group of persons. Conflicts may arise when an activity or conduct of an individual, in pursuit of a freedom recognised by the Constitution, impinges upon the protection afforded to another individual under the rubric of the same human right. Such a situation involves a conflict arising from a freedom which is relatable to the same constitutional guarantee. Privacy is an assertion of the right to life Under Article 21. The right to a dignified existence is also protected by the same Article. A conflict within Article 21 may involve a situation when two freedoms are asserted as political rights. A conflict may also envisage a situation where an assertion of a political right under the umbrella of the right to life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a competition between the right to privacy of an individual 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." Ibid, at page 472 The Court held that the provision contained in the Representation of People Act 1951 for a disclosure of assets and liabilities only to the Speaker or to the Chairman of the House did not adequately protect the citizen's right to information, resulting in a violation of the guarantee of free speech and expression. 193. In Thalappalam Service Cooperative Bank Limited v. State of Kerala (2013) 16 SCC 82, this Court dealt with a conflict between the right to information [(protected by Article 19(1)(a)] and the right to privacy (protected by Article 21). The Court observed: "61. The right to information and right to privacy are, therefore, not absolute rights, both the rights, one of which falls Under Article 19(1)(a) and the other Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 21 of the Constitution." Ibid, at page 714 In Subramanian Swamy v. Union of India (2016) 7 SCC 221, the learned Chief Justice, speaking for a Bench of two judges emphasised the need for a sense of balance when the assertion of fundamental rights by two citizens is in conflict: "137...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 claims of different interests." Ibid, at page 319 Noting that the "balancing of fundamental rights is a constitutional necessity", the Court has attempted to harmonise reputation as an intrinsic element of the right to life Under Article 21 with criminal defamation as a restriction Under Article 19(2). 195. In Asha Ranjan v. Chandrakeshwar Prasad (2017) 4 SCC 397, this Court dealt with a case involving a conflict between the fundamental rights of two individuals within Article 21. There was on the one hand an assertion of the right to life on the part of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utional 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. 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 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. 197. The test of proportionality, which began as an unwritten set of general principles of law, today constitutes the dominant "best practice" judicial standard for resolving disputes that involve either a conflict between two rights claims or between a right and a legitimate government interest. ud Mathews and Alec Stone Sweet, All things in Proportion? American Rights Review and the Problem of Balancing, Emory Law Journal, Vol. 60 (2011) It has become a "centrepiece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights ... Our democracy is characterized by the fact that it imposes limits on the ability to violate human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his right, which cannot be breached even by majority." 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 is inappropriate. The State must discharge its burden by demonstrating that rights-infringing measures were necessary and proportionate to the goal sought to be achieved. H.2 Proportionality standard in Indian jurisprudence 199. In India, the principle of proportionality has a long jurisprudential history which has been adverted to in a judgment Om Kumar v Union of India, (2001) 2 SCC 386 of this Court: "On account of a Chapter on Fundamental Rights in Part III of our Constitution right from 1950, Indian Courts did not suffer from the disability similar to the one ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion unlawful violated Article 19(1)(c) of the Constitution. Chief Justice Patanjali Sastri, speaking for the Constitution Bench, propounded what has come to be regarded as a classic statement of the principle of proportionality in our law: "15. ...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 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...." (Emphasis supplied) The decision of the Constitution Bench in State of Bihar v. Kamla Kant Misra (1969) 3 SCC 337 concerned a challenge to the second part of Sub-section (6) of Section 144 of the Code of Criminal Procedure on the ground that it violated Sub-clauses (b), (c) and (d) of Clause (1) of Article 19 of the Constitution. Justice K S Hegde, speaking for the majority, observed: "15. One of the important tests to find out wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and the administrative authority are however given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality." Ibid, at page 399 (Emphasis supplied) In Teri Oat Estates v. U.T., Chandigarh (2004) 2 SCC 130, this Court adopted a similar interpretation of proportionality. 203. In Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 a Constitution Bench of this Court while dealing with a challenge to the vires of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, held that proportionality is the correct test to apply in the context of Article 19(6). Justice A K Sikri, speaking for the Court, held thus: "60... 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 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them." Ibid, at page 509 The third principle (iii above) adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve 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 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. Justice Sanjay Kishan Kaul, in his concurring opinion, suggested a four-pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities on the ground that they enabled authorities to compare census data with local housing registries. The Court observed that the combination of statistical data and a personalized registry could lead to the identification of particular persons, which would lead to a chilling effect upon individuals' right to informational self-determination. The Court developed a 'fundamental right of informational self-determination' drawing from Articles 1(1) and 2(1) of the German Constitution, which protect the fundamental right to human dignity and the right to freely develop one's personality. Explaining the importance of this right in the context of risks occasioned by modern data processing, the Court noted that: "The freedom of individuals to make plans or decisions in reliance on their personal powers of self-determination may be significantly inhibited if they cannot with sufficient certainty determine what information on them is known in certain areas of their social sphere and in some measure appraise the extent of knowledge in the possession of possible interlocutors. A social order in which individuals can no longer ascertain who knows what about them and when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omated data processing, protection is required against unauthorized use-including protection against such use by other governmental entities-through a prohibition on the transfer and use of such data Ibid, at page 150. Clearly defined conditions must be created for processing to ensure that individuals do not become mere data subjects in the context of the automated collection and processing of the information pertaining to their person. Both the absence of a connection with a specific purpose that can be recognized and verified at all times and the multifunctional use of data, reinforce the tendencies that are to be checked and restricted by data-protection legislation, which represents the concrete manifestation of the constitutionally guaranteed right to informational self-determination. Ibid, at page 151 On the principle of proportionality, the Court held that: "The legislature must in its statutory Regulations respect the principle of proportionality. This principle, which enjoys constitutional status, follows from the nature of the fundamental rights themselves, which, as an expression of the general right of the public to freedom from interference by the state, may be res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances." Ibid, at Paragraph 119 The Court concluded that the retention constituted a disproportionate interference with the Applicants' right to privacy: "125...That 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 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... (Emphasis supplied) The Court rejected the government's arguments that fingerprints constituted neutral, objective, irrefutable and uninte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arital status and residence of the holder, their height, eye colour, fingerprints and photograph for the issuance of French passports and national ID cards and for conducting investigations involving certain offences if authorised by a public prosecutor or a judge. The Council relied on Article 34 of the French Constitution to hold that it was incumbent upon the Parliament to strike a balance between safeguarding public order and bringing offenders to justice on one hand, and the right to privacy on the other. The Council placed reliance on the Declaration of the Rights of Man and the Citizen of 1789. Article 2 of the Declaration states "The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are liberty, property, safety and resistance to oppression". The Council held that the liberty proclaimed by Article 2 includes the right to respect for private life, and accordingly, that "the collection, registration, conservation, consultation and communication of personal data must be justified on grounds of general interest and implemented in an adequate manner, proportionate to this objective." The Council held that Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata could not be deleted. The Court concluded that the Regulations failed to strike a balance between competing public and private interests and held, unanimously, that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. 211. The Conseil d'Etat he Conseil d'Etat (Council of State) is a body of the French government that acts as legal advisor of the executive branch and as the supreme court for administrative justice in Association pour la promotion de l'image Conseil d' Etat in France, 26 October 2011 was asked whether a decree regulating the use and storage of data from biometric passports was lawful. One of the stipulations of the decree was that eight fingerprints were stored by the authorities, while only two were required for the passport. The Conseil d'Etat stated that the collection and retention of six more fingerprints to be centrally stored was irrelevant and excessive in relation to the purpose of the computerized database. 212. In Digital Rights Ireland Ltd. v. Minister, C‑293/12 and C‑594/12 the Court of Justice of the European Union held that the EU legislature had exceeded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight." Ibid, at para 51 (Emphasis supplied) The Court criticized the Directive for failing to lay down any clear or precise Rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It observed that the Directive was overbroad because it applied to all data, regardless of the existence of suspicion, and contained no criteria for limiting government access or safeguards for preventing abuse: "...Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime... ...Whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, the Court emphasized that even highly important objectives such as the fight against serious crime and terrorism cannot justify measures which lead to forms of interference that go beyond what is 'strictly necessary'. Ibid, at para 51 213 In Michael Schwarz v. Stadt Bochum, [2013] EUECJ C-291/12 the Court of Justice of the European Union was called upon to examine the validity of a provision in a Council Regulation that obliged persons applying for a passport to provide fingerprints which would be stored in that passport. In considering whether this Regulation was valid and necessary, the Court observed: "...Article 1(2) of Regulation No. 2252/2004 does not provide for the storage of fingerprints except within the passport itself, which belongs to the holder alone. Ibid, at para 60 The Regulation not providing for any other form or method of storing those fingerprints, it cannot in and of itself...be interpreted as providing a legal basis for the centralised storage of data collected thereunder or for the use of such data for purposes other than that of preventing illegal entry into the European Union. Ibid, at para 61 In those circumstances, the arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory production of an identity card to a policeman Under Section 7(1A) in response to a request Under Section 7(1)(b); and (v) the gravity of the potential penalties for non-compliance Under Section 9(3), before the Mauritian Supreme Court. The challenge was on the ground that the implementation of the biometric identity card and the permanent storage of biometric data contravened provisions of the Mauritian Constitution and the Civil Code. Regarding the challenge to Section 4 (2)(c) of the Act, which provided that, "every person who applies for an identity card shall allow his fingerprints, and other biometric information about himself, to be taken and recorded ... for the purpose of the identity card," the Supreme Court noted that the right to privacy Under Section 9(1) of the Constitution was not an absolute right and interference with that right could be permitted Under Section 9(2), if a law that interfered with that right was in the interest, inter alia, of public order. The Committee noted the Supreme Court's approach to determining whether Section 4(2)(c) fell foul of the Constitution, which was based on the test laid down in S and Marper v. The United Kingdom [2008] EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the appropriate safeguards in the taking of fingerprints for their insertion in the cards, and the relatively limited degree of interference involved, we are led to conclude that such interference is proportionate to the legitimate aim pursued."[2016] UKPC 30, at page 10 Thus, the Mauritian Supreme Court upheld provisions of the Act which provided for the compulsory taking of fingerprints. The Appellant also challenged Section 3 of the Act, which provided for biometric data to be stored in a register. The Supreme Court, after taking into consideration witness testimonies on the purpose of data collection, noted that though there may have been a legitimate aim for storing and collecting this data, "sufficiently strong reasons...to establish that such storage and retention of data for an indefinite period is proportionate to the legitimate aim pursued" were not established. Ibid, at page 31 Thus, the Court held that: "... it is inconceivable that there can be such uncontrolled access to personal data in the absence of the vital safeguards afforded by judicial control. The potential for misuse or abuse of the exercise of the powers granted under the law would be significantly di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee reconciled the holding to be: "A law providing for the storage and retention of fingerprints and other personal biometric data regarding the identity of a person in principle constitutes a permissible derogation, in the interests of public order, Under Section 9(2) of the Constitution." (Emphasis supplied) 215. The learned Attorney General has relied on cases from other jurisdictions to buttress his contention that the collection and use of biometric information for various services have been found to be legal. 'Biometric data Article 4(14) ' is defined in the General Data Protection Regulation thus: personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data. The learned Attorney General cited the following judgments of the US Supreme Court: Vernonia School District 47J v. Acton ("Acton"), 515 U.S. 646 (1995), Skinner v. Railway Labor Executives' Association ("Skinner"), 489 U.S. 602 (1989) Whalen v. Roe ("Whalen"), 429 U.S. 589 (1977), United States v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment to conduct its internal affairs in consonance with the religious beliefs of particular citizens. In In re Crawford, 194 F. 3d 954 (9th Cir. 1999) the Ninth Circuit upheld provisions of the Bankruptcy Code which mandated public disclosure of a Bankruptcy Petition Preparers' Social Security Number on documents submitted to the Court, noting that the provision had been enacted to serve governmental interests of preventing fraud and providing public access to judicial proceedings. 216. Some decisions of lower courts in the US which have considered the validity of laws or actions of the State deploying biometrics and which have been cited by the Respondents are: Haskell v. Harris ("Haskell"), 669 F. 3d 1049 (9th Cir. 2012), Utility Workers Union of America v. Nuclear Regulatory Commission ("UWUA"), 664 F. Supp. 136 (S.D.N.Y. 1987), Nicholas A Iacobucci v. City of Newport ("Iacobucci"), 785 F. 2d 1354 (6th Cir. 1986), Thom v. New York Stock Exchange ("Thom"), 306 F. Supp. 1002 (S.D.N.Y. 1969), Perkey v. Department of Motor Vehicles ("Perkey"), (1986) 42 Cal. 3d 185, Buchanan v. Wing (Buchanan), N.Y.S. 2d 865, People v. Stuller ("Stuller"), 10 Cal. App. 3d 582 (1970), Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hods such as handwriting specimens and photographs were not reliable. Thus, the submission of fingerprints as part of the license application process, bore a rational relationship to the State's goal of promoting safe and lawful use of highways. In Buchanan, the Court upheld the eligibility requirement for a welfare aid scheme which mandated participation in an identity verification procedure known as Automated Finger Imaging System (AFIS), rejecting the challenge based on religious beliefs of the Petitioner. The Court held that the Petitioner had failed to prove that the AFIS involved any invasive procedures, noting that she had acknowledged that she had never seen finger imaging performed and had no idea whether a laser was involved. In Stuller, the constitutionality of a law which required "temporary and itinerant classes of employees" to undergo fingerprinting in order to protect "visitors and residents" of a resort city from crime and loss, both against people and against property, was upheld. In Kelly, the Circuit Court of Appeals rejected a claim for return of fingerprints of the Defendant which had been obtained after he had been arrested by prohibition agents, holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that a citizen might be perpetrating a crime or an identity fraud. When the State is not required to have a reasonable belief and judicial determination to this effect, a program like Aadhaar, which infringes on the justifiable expectations of privacy of citizens flowing from the Constitution, is completely disproportionate to the objective sought to be achieved by the State. 218. The fundamental precepts of proportionality, as they emerge from decided cases can be formulated thus: 1. A law interfering with fundamental rights must be in pursuance of a legitimate state aim; 2. The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved; 3. The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim; 4. Restrictions must not only serve a legitimate purposes; they must also be necessary to protect them; and 5. The State must provide sufficient safeguards relating to the storing and protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that there must be a protection against unauthorized use and clearly defined conditions for processing of data collected. Those conditions must not be excessive and must be justified on grounds of public interest and implemented in a manner proportionate to the objective. Too broad a scope of data collected and retained, the lack of limits imposed on access to data by authorities and a failure to distinguish between the treatment of data based on its usefulness and relevance are seen by Courts as constituting grounds for striking down the measure. While the State's imperatives are seen as relevant, emphasis is laid on retention and access requirements being proportionate to those imperatives and the need to prevent against abuse. Courts have upheld Regulations that are necessary to achieve the legitimate aims and not excessive in their nature or impact. The issue is whether the Aadhaar project and the Act, Rules and Regulations meet the test of proportionality. H.4 Aadhaar: the proportionality analysis 222. Under Aadhaar, the State has put forth an objective of transferring subsidies and entitlements to its citizens. The aim was to curb leakages and to increase transpare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the CEO, questions addressed by Mr. Divan and the responses filed by the Respondents will facilitate an understanding of the architecture of the Aadhaar project. Our analysis indicates that the correctness of the documents submitted by an individual at the stage of enrolment or while updating information is not verified by any official of UIDAI or of the Government. UIDAI does not take institutional responsibility for the correctness of the information entering its database. It delegates this task to the enrolment agency or the Registrar. The following response has been submitted by the Respondents to the queries addressed specifically on this aspect: "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 of documents." 223. UIDAI does not identify the persons who enrol within the Aadhaar system. Once the biometric information is stored in the CIDR during enrolment, it is only matched with the information received at the time of authentication. Biometric authenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holders. Therefore, this exception handling mechanism is to be implemented and monitored by the requesting entities and in case of the government, their respective ministries." Forty-nine thousand enrolment operators have been blacklisted by UIDAI. In reply to the question of the Petitioners asking the reasons for blacklisting of the enrolment operators, UIDAI has stated that a data quality check is done during the enrolment process and if any Aadhaar enrolment is found to be not to be compliant with the UIDAI process, the enrolment gets rejected and an Aadhaar number is not generated. An operator who crosses a threshold defined in the policy, is blacklisted/removed from the UIDAI ecosystem. UIDAI has provided information that forty-nine thousand operators were blacklisted/removed from the UIDAI ecosystem for the following reasons: (a) illegally charging residents for Aadhaar enrolment; (b) poor demographic data quality; (c) invalid biometric exceptions; and (d) other process malpractices. Once an operator is blacklisted or suspended, further enrolments cannot be carried out by it until the order of blacklisting/suspension is valid. 225. The Aadhaar architecture incorporates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information. The response which UIDAI has provided is extracted below: "UIDAI has mandated use of Registered Devices (RD) for all authentication requests. With Registered Devices 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 Regulation 17(1)(a) of Aadhaar (Authentication) Regulations 2016." 226. A PID block is defined in Regulation 2(n) of Aadhaar (Authentication) Regulations, 2016 as the Personal Identity Data element, which includes necessary demographic and/or biometric and/or OTP collected from the Aadhaar number holder during authentication. Regulation 17(1)(c) allows the requesting entity to store the PID block when "it is for buffered aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (5) of Regulation 9 provides that a requesting entity shall ensure that encryption of PID Block takes place at the time of capture on the authentication device according to the processes and specifications laid down by UIDAI. Regulation 18(1) provides that a requesting entity would maintain logs of the authentication transactions processed by it, containing the following transaction details: (a) the Aadhaar number against which authentication is sought; (b) specified parameters of authentication request submitted; (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 authentication. The provision excludes retention of PID information in any case. Regulations 18(2) and 18(3) allow the retention of the logs of authentication transactions by the requesting entity for a period of two years. Upon the expiry of two years the logs have to be archived for a period of five years or the number of years required by the laws or Regulations governing the entity, whichever is later. Upon the expiry of this period, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parameters are not the 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 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." However, Regulation 26, which deals with the storage and maintenance of Authentication Transaction Data clearly provides that UIDAI shall store and maintain authentication transaction data, which shall contain the following information: (a) authentication request data received including PID block; (b) authentication response data sent; (c) meta data AUA code, ASA code, unique device code, registered device code used for authentication, and that UIDAIwould know from which device the authentication has happened related to the transaction; and (d) any authentication server side configurations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, while maintaining the privacy of individual users. The Report states that differential privacy of a protocol is the change in the privacy of people when the protocol is introduced without altering any other protocol present. If the differential privacy of a protocol is "non-negative", the protocol does not compromise privacy in any way. There are four existing Aadhaar databases: (i) The 'person database' stores personal attributes of a person (name, address, age, etc.) along with his/her Aadhaar number; (ii) The reference database stores the Aadhaar number of a person along with a unique reference number (which has no relationship with the Aadhaar number of an individual); (iii) The biometric database stores biometric information of a person along with the unique reference number; and (iv) The verification log records all ID verifications done in the past five years. For each verification, it stores the biometric data, Aadhaar number, and ID of the device on which verification was done. The report analyses the situation if any of the databases gets leaked. The report remarks: "Finally, let us turn attention to Verification Log. Its leakage may affect both the secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrimination based on religion, ethnicity and caste." Puttaswamy at para 585 Justice Kaul also dealt with the need to regulate the conduct of private entities vis-a-vis profiling of individuals: "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... Puttaswamy at para 587 ...[I]n this digital age, individuals are constantly generating 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... These digital footprints and extensive data can be analyzed computationally to reveal patterns, trends, and associations, especially relating to human behavior and interactions and hence, is valuable information. This is the age of 'big data'. The 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." Puttaswamy at para 588 230. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the license of the software (proprietary algorithms) developed by L-1 Identity Solutions. However, it has been clarified in the Contract that: "The Contract and the licenses granted herein are not a sale of a copy of the software and do not render Purchaser the owner of M/S L-1 Identity Solutions Operating Company's proprietary ABIS and SDK software." Ibid The Contract authorises L-1 Identity Solutions to retain proprietary ownership of all intellectual property rights in and to goods, services and other deliverables to the purchaser under the Contract that are modifications or derivative works to their pre-existing technologies, software, goods, services and other works. If a modification or derivative work made by L-1 Identity Solutions or its consortium members contains unique confidential information of the purchaser, then, the contract provides that the former shall not further license or distribute such modification or derivative to any other customer or third party other than the purchaser without the purchaser's prior written permission. Ibid Clause 13.3 provides: "M/S L-1 Identity Solutions Operating Company/The team of M/S L-1 Identity Solutions Operating C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Contract. In the event of termination or expiry of contract, M/S L-1 Identity Solutions Operating Company shall transfer all the proprietary templates to UIDAI in an electronic storage media in a form that is freely retrievable for reference and usage in future. "15.3 The Data shall be retained by M/S L-1 Identity Solutions Operating Company not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future." Under the Contract, L-1 Identity Solutions retains the ownership of the biometric software. UIDAI has been given only the license to use the software. Neither the Central Government nor the UIDAI have the source code for the de-duplication technology which is at the heart of the programme. The source code belongs to a foreign corporation. UIDAI is merely a licensee. It has also been provided that L-1 Identity Solutions can be given access to the database of UIDAI and the personal information of any individual. 232. This Court in Puttaswamy had emphasized on the centrality of consent in protection of data privacy: "307...Apart from safeguarding privacy, data protection regimes seek to protect the autono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Enrolling agencies. 234. This Court held in Puttaswamy that any law which infringes the right to privacy of an individual needs to have stringent inbuilt safeguards against the abuse of the process. The Aadhaar Act envisages UIDAI as the sole authority for the purpose of the Act. It entrusts UIDAI with a wide canvass of functions, both administrative and adjudicatory. It performs the functions of appointing enrolling agencies, registrars and requesting entities. Currently, there are 212 Registrars and 755 enrolling agencies in different states of the country. As submitted by Mr Rakesh Dwivedi, learned senior counsel for the State of Gujarat Monitoring the actions of so many entities is not a task easily done. Responsibility has also been placed on UIDAI to manage and secure the central database of identity information of individuals. UIDAI is also required to ensure that data stored in CIDR is kept secure and confidential. It has been placed with the responsibility for the protection of the identity information of 1.2 billion citizens. UIDAI is entrusted with discretionary powers under the architecture of Aadhaar, including the discretion to share the personal information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t redressal mechanism and options for compensation must be incorporated in the law. Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy. Whether it is against UIDAI or a private entity, it is critical that the individual retains the right to seek compensation and justice. This would require a carefully designed structure. Shankkar Aiyar, Aadhaar: A Biometric History of India's 12-Digit Revolution, Westland (2017), at pages 226-227 236. An independent and autonomous authority is needed to monitor the compliance of the provisions of any statute, which infringes the privacy of an individual. A fair data protection regime requires establishment of an independent authority to deal with the contraventions of the data protection framework as well as to proactively supervise its compliance. The independent monitoring authority must be required to prescribe the standards against which compliance with the data protection norms is to be measured. It has to independently adjudicate upon disputes in relation to the contravention of the law. Data protection requires a strong regulatory framework to protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is hence necessary that the criminal law must be supplemented by an independent regulatory framework. In its absence, there is a grave danger that the regime of data protection, as well as the administration of criminal justice will be rendered dysfunctional. Unfortunately, a regulatory framework of the nature referred to above is completely absent. UIDAI which is established and controlled by the Union Government possesses neither the autonomy nor the regulatory authority to enforce the mandate of the law in regard to the protection of data. The absence of a regulatory framework renders the legislation largely ineffective in dealing with data violations. Data protection cannot be left to an unregulated market place. Nor can the law rest in the fond hope that organized structures within or outside government will be self-compliant. The Aadhaar Act has manifestly failed in its legislative design to establish and enforce an autonomous regulatory mechanism. Absent such a mechanism, the state has failed to fulfil the obligation cast upon it to protect the individual right to informational self-determination. 238. Section 33(2), which permits disclosure of identity information and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom using his or her image, name and other aspects of personal life and identity for commercial purposes without consent. An Aadhaar number is a unique attribute of an individual. It embodies unique information associated with an individual. The manner in which it is to be used has to be dependent on the consent of the individual. 241. Section 57 of the Aadhaar Act allows the use of an Aadhaar number for establishing the identity of an individual "for any purpose" by the state, private entities and persons. Allowing private entities to use Aadhaar numbers will lead to commercial exploitation of an individual's personal data without his/her consent and could lead to individual profiling. The contention is that Section 57 fails to meet the requirements set out in the Puttaswamy judgment. In this regard, reference must be drawn to a 2010 policy paper. A group of officers was created by the Government of India to develop a framework for a privacy legislation that would balance the need for privacy protection with security and sectoral interests, and respond to the need for domain legislation on the subject. An approach paper for the legal framework for a proposed legislation on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with private entities. In view of the above, privacy of individual is to be protected both with reference to the actions of Government as well as private sector entities." Ibid The Paper highlighted the need for a stringent privacy protection mechanism, which could prevent individual data from commercial exploitation as well as individual profiling. 242. Reference must also be drawn to Chapter V of the National Identification Authority of India Bill, 2010, which provided for the constitution of an Identity Review Committee. The proposed Committee was to be entrusted to carry out the function of ascertaining the extent and pattern of usage of Aadhaar numbers across the country. The Committee was required to prepare a report annually in relation to the extent and pattern of usage of the Aadhaar numbers along with its recommendations thereon and submit it to the Central Government. The idea behind the establishment of such a Committee was to limit the extent to which Aadhaar numbers could be used. These provisions have not been included in the Aadhaar Act, 2016. Instead, the Act allows the use of Aadhaar number for any purpose by the State as well as private entities. This is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aar with different databases carries the potential of being profiled into a system, which could be used for commercial purposes. It also carries the capability of influencing the behavioural patterns of individuals, by affecting their privacy and liberty. Profiling individuals could be used to create co-relations between human lives, which are generally unconnected. If the traces of Aadhaar number are left in every facet of human life, it will lead to a loss of privacy. The repercussions of profiling individuals were anticipated in 1966 by Alexander Solzhenitsyn in 'Cancer Ward' Aleksandr Solzhenitsyn, Cancer Ward, The Bodley Head (1968). His views are prescient to our age: "As every man goes through life he fills in a number of forms for the record, each containing a number of questions. A man's answer to one question on one form becomes a little thread, permanently connecting him to the local centre of personnel records administration. There are thus hundreds of little threads radiating from every man, millions of threads in all. If these threads were suddenly to become visible, the whole sky would look like a spider's web, and if they materialised as elastic ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to others. Section 57 cannot be applied to permit commercial exploitation of the data of individuals or to affect their behavioural patterns. Section 57 does not pass constitutional muster. It is manifestly arbitrary, suffers from overbreadth and violates Article 14. 246. At its core, the Aadhaar Act attempts to create a method for identification of individuals so as to provide services, subsidies and other benefits to them. The Preamble of the Act explains that the architecture of the Act seeks to provide "efficient, transparent and targeted delivery of subsidies, benefits and services" for which the expenditure is incurred from the Consolidated Fund to resident individuals. Section 7 of the Act makes the proof of possession of Aadhaar number or Aadhaar authentication as a mandatory condition for receipt of a subsidy, benefit or service, which incurs expenditure from the Consolidated Fund of India. The scope of Section 7 is very wide. It leaves the door open for the government to route more benefits, subsidies and services through the Consolidated Fund of India and expand the scope of Aadhaar. Any activity of the government paid for from the Consolidated Fund of India ranging f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the state to deny pension to a person entitled to it by linking pensionary payments to the possession of an Aadhaar number or to its authentication. 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 rightfully entitled. This aim of the government can be fulfilled by other less intrusive measures. The requirement of insisting on 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 meals or scholarships, to children belonging to the marginalised segments of the society. Should the disbursal of these benefits be made to depend upon a young child obtaining an Aadhaar number or undergoing the process of authentication? The object of the state is to ensure that the benefits which it offers are being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He rejects the notion of an exclusive identity as "preposterous", observing that in different settings, individuals rely upon and assert varying identities: "Each of us invokes identities of various kinds in disparate contexts. The same person can be of Indian origin, a Parsee, a French citizen, a US resident, a woman, a poet, a vegetarian, an anthropologist, a university professor, a Christian, a bird watcher, and an avid believer in extraterrestrial life and of the propensity of alien creatures to ride around the cosmos in multicoloured UFOs. Each of these collectivities, to all of which this person belongs, gives him or her a particular identity. They can all have relevance, depending on the context." Ibid, at page 350 Sen's logic, drawn from how individuals express their personalities in the real world, has a strong constitutional foundation. In the protection which it grants to a diverse set of liberties and freedoms, the Constitution allows for the assertion of different identities. The exercise of each freedom may generate a distinct identity. Combinations of freedoms are compatible with composite identities. Sen also rejects the notion that individuals "discover thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective demands, cannot be only a matter of discovery. They are inescapably decisional, and demand reason-not just recognition." Ibid, at page 352 250. The Constitution recognizes, through the rights which it protects, a multitude of identities and the myriad forms of its expression. Our political identities as citizens define our relationship with the nation state. The rights which the Constitution recognizes as fundamental liberties constitute a reflection of the identity of the self. As we speak, so we profess who we are. An artist who paints, the writer who shares a thought, the musician who composes, the preacher who influences our spirituality and the demagogue who launches into human sensibilities are all participants in the assertion of identity. In this participative process, the identities of both the performer and the audience are continuously engaged. Identity at a constitutional level is reflected in the entitlement of every individual, protected by its values, to lead a way of life which defines the uniqueness of our beings. The Constitution recognizes a multitude of identities, based on the liberties which it recognizes as an inseparable part of our beings. To b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to establish the identity of an individual is a major hindrance in the disbursal of welfare benefits. Section 3(1) recognizes the entitlement of every resident to obtain an Aadhaar number. Section 4(3) provides that an Aadhaar number may be accepted as proof of identity. Section 7(1) indicates that its purpose is for establishing the identity of an individual for the receipt of services, benefits or subsidies drawn from the Consolidated Fund. These provisions cannot be allowed to displace constitutional identities. Nor can the provisions of Section 7 reduce an individual to a nameless or faceless person. 252. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not obliterate 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, as has been specifically discussed before, the linking of the Aadhaar number to different databases is capable of profiling an individual, which could include information regarding her/his race, religion, caste, tribe, ethnicity, language, records of entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right to food for citizens, automatically entails a sacrifice of the right to privacy when both these rights are protected by the Constitution. One right cannot be taken away at the behest of the other especially when the State has been unable to satisfy this Court that the two rights are mutually exclusive. The State has been unable to respond to the contention of the Petitioners that it has failed to consider that there were much less rights-invasive measures that could have furthered its goals. The burden of proof on the State was to demonstrate that the right to food and other entitlements provided through the Aadhaar scheme could not have been secured without the violating the fundamental rights of privacy and dignity. Dworkin in his classical book "Taking Rights Seriously", while answering the question whether some rights are so important that the State is justified in doing all it can to maintain even if it abridges other rights, states that: "But no society that purports to recognize a variety of rights, on the ground that a man's dignity or equality may be invaded in a variety of ways, can accept such a principle... If rights make sense, then the degrees of their i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises which may be set out in the following terms: (i) The individual is an end in himself. (ii) That the individual has certain inalienable rights which must be guaranteed to him by the Constitution. (iii) That the individual shall not be required to relinquish any of his constitutional rights as a condition precedent to the receipt of a privilege. (iv) That the State shall not delegate powers to private persons to govern others. Dr. Babasaheb Ambedkar: Writings and Speeches (Vol. 1), Dr. Ambedkar Foundation (2014) Interpreting the words of Dr Ambedkar in a constitutional context, any action on the part of the State which forces an individual to part with her or his dignity or any other right under Part III will not be permissible. 257. The experience of living with chronic hunger; recurring uncertainty about the availability of food; debt bondage; low and highly underpaid work; self-denial; and sacrifice of other survival needs, being discriminated against Harsh Mander, Living with Hunger: Deprivation among the Aged, Single Women and People with Disability, Economic & Political Weekly (April 26, 2008), Vol. 43, available at https://www.epw.in/journal/2008/17/special-arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re from the Consolidated Fund of India. In the Aadhaar based Biometric Authentication, the Aadhaar number and biometric information submitted by an Aadhaar number holder are matched with the biometric information stored in the CIDR. This may be fingerprints-based or iris-based authentication or other biometric modalities based on biometric information stored in the CIDR. UIDAI, Aadhaar Authentication, available at https://uidai.gov.in/authentication.html It has been submitted that failure of the authentication process results in denial of a subsidy, benefit or service contemplated Under Section 7 of the Act. It has been contended that non-enrolment in the Aadhaar scheme and non-linking of the Aadhaar number with the benefit, subsidy or service causes exclusion of eligible beneficiaries. It is the submission of the Petitioners that authentication of biometrics is faulty, as biometrics are probabilistic in nature. It is the case of the Petitioners that Aadhaar based biometric authentication often results in errors and thus leads to exclusion of individuals from subsidies, benefits and services provided Under Section 7. Across the country, it has been urged, several persons are losin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system, and so on. As a result, each interaction of the individual with the system (at enrolment, identification and so on) will be associated with different biometric information. Individuals attempting to thwart recognition for one reason or another also contribute to the inherent uncertainty in biometric systems." Ibid (Emphasis supplied) The report had also stated that biometrics can result in exclusion of people if it is used for claiming entitlement to a benefit: "When used in contexts where individuals are claiming enrollment or entitlement to a benefit, biometric systems could disenfranchise people who are unable to participate for physical, social, or cultural reasons. For these reasons, the use of biometrics--especially in applications driven by public policy, where the affected population may have little alternative to participation--merits careful oversight and public discussion to anticipate and minimize detrimental societal and individual effects and to avoid violating privacy and due process rights. Social, cultural, and legal issues can affect a system's acceptance by users, its performance, or the decisions on whether to use it in the first place--so it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Punish the Poor" Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, St.Martin's Press (2018) authored by Virginia Eubanks, deals with the impact of data mining, policy algorithms, and predictive risk models on economic inequality and democracy in America. Eubanks outlines the impacts of automated decision-making on public services in the USA through three case studies relating to welfare provision, homelessness and child protection services. Eubanks looks at these three areas in three different parts of the United States: Indiana, Los Angeles and Pittsburgh, to examine what technological automation has done in determining benefits and the problems it causes. The author records that in Indiana, one million applications for health care, food stamps, and cash benefits in three years were denied, because a new authentication system interpreted any application mistake as "failure to cooperate". In Los Angeles, an algorithm calculates the comparative vulnerability of thousands of homeless people so as to prioritize them for an inadequate pool of housing resources. In Pittsburgh, child services use an algorithm to predict future beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and well in the automated decision-making systems that encage and entrap today's poor. For all their high-tech polish, our modern systems of poverty management-automated decision-making, data mining, and predictive analysis-retain a remarkable kinship with the poorhouses of the past. Our new digital tools spring from punitive, moralistic views of poverty and create a system of high-tech containment and investigation. The digital poorhouse deters the poor from accessing public resources; polices their labor, spending, sexuality, and parenting; tries to predict their future behavior; and punishes and criminalizes those who do not comply with its dictates. In the process, it creates ever-finer moral distinctions between the 'deserving' and 'undeserving' poor, categorizations that rationalize our national failure to care for one another." Ibid, at page 16 (Emphasis supplied) Eubanks builds the argument that automated decision-making technology does not act as a facilitator for welfare schemes for the poor and only acts as a gatekeeper: "New high-tech tools allow for more precise measuring and tracking, better sharing of information, and increased visibility o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect has to survive, then it has to be ensured that individual dignity is protected. These concerns have to be addressed. As mentioned earlier, concerns regarding the application of biometrics in the Aadhaar project were discussed in 2009 by the Biometrics Standards Committee of UIDAI UIDAI Committee on Biometrics, Biometrics Design Standards For UID Applications, at page 4, which was of the view that the large magnitude of the Aadhaar project raised uncertainty about the accuracy of biometrics Ibid The Strategy Overview UIDAI, UIDAI Strategy Overview, (2010), available at http://www.prsindia.org/uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf published by UIDAI, in 2010, had discussed the risks associated with biometrics perceived by UIDAI itself. Under the heading of 'Project Risk', the overview stated the UID project does face certain risks in its implementation, which have to be addressed through its architecture and in the design of its incentives. It stated: "1) Adoption Risks: There will have to be sufficient, early demand from residents for the UID number. Without critical mass among key demographic groups (the rural and the poor) the number will not be suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NIA Bill, was concerned about the impact of Aadhaar on marginalized Sections of society. Since the availing of subsidies and benefits was to depend upon Aadhaar based authentication, any error in the authentication would result in a denial of the benefits of social security schemes for the marginalized. In 2011, the report of the Standing Committee noted, thus: "The full or near full coverage of marginalized Sections for issuing Aadhaar numbers could not be achieved mainly owing to two reasons viz. (i) the UIDAI doesn't have the statistical data relating to them; and (ii) estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour." Forty-Second Report of the Standing Committee on Finance (2011), available at http://www.prsindia.org/uploads/media/UID/uid%20report.pdf, at page 30 (Emphasis supplied) The Economic Survey 2016-17 has adverted to authentication failures while discussing the concept of Universal Basic Income (UBI). The Survey, which is an official document of the Union government, states that UBI is premised on the idea that a just society needs to guarantee to each individual a minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Aadhaar programme. The Memorandum creates a mechanism for availing subsidies, benefits or services in cases where Aadhaar authentication fails: (i) Departments and Bank Branches may make provisions for IRIS scanners along with fingerprint scanners wherever feasible; (ii) In cases of failure due to lack of connectivity, offline authentication systems such as QR code based coupons, Mobile based OTP or TOTP may be explored; and (iii) In all cases where online authentication is not feasible, the benefit/service may be provided on the basis of possession of Aadhaar, after duly recording the transaction in a register, to be reviewed and audited periodically. The figures from the Economic Survey of India indicate that there are millions of eligible beneficiaries across India who have suffered financial exclusion. The Cabinet Secretariat has pro-actively acknowledged the need to address matters of exclusion by implementing alternate modalities, apart from those set out in Section 7. Options (i) and (ii) above were to be implemented in future. This exercise should have been undertaken by the government in advance. Problems have to be anticipated when a project is on the drawing bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernet connectivity as verification of the ration card number and the beneficiary's biometric fingerprint is carried out over the internet; (d) Remote Aadhaar servers: Remote Aadhaar servers verify the ration card number and initiate fingerprint authentication; and (e) Fingerprint recognition software: The beneficiary proves her identity by submitting to fingerprint recognition in the PoS machine. Upon verification, the PoS machine indicates that the beneficiary is genuine and that foodgrains can be distributed to her household. The above procedure requires that at the time of purchase of PDS grains each month, any one person listed on the ration card needs to authenticate themselves. Similarly, for pensions, elderly persons must go to the point of delivery to authenticate themselves. Reetika Khera has observed that since ABBA on PoS machines is currently a monthly activity, so each of its associated technologies (correct Aadhaar-seeding, mobile connectivity, electricity, functional PoS machines and UIDAI servers and fingerprint recognition) needs to work for a person to get their entitlement. Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and payment systems, a significant number of those vulnerable and dependent on Public Distribution System (PDS) for food grains are failing to realise their right to food. The survey revealed that among 80 surveyed households, 89% reported receiving full entitlements at correct prices even before the introduction of Aadhaar-based biometric authentication (ABBA). In contrast, 10% of households were excluded due to authentication failures due to reported errors with one or more of its five technological components. 268. An Article titled "Aadhaar and Food Security in Jharkhand: Pain without Gain?" Jean Drèze, Nazar Khalid, Reetika Khera, and Anmol Somanchi, Aadhaar and Food Security in Jharkhand: Pain without Gain?, Economic & Political Weekly, Vol. 52 (16 December 2017)., based on a household survey in rural Jharkhand, examines various issues related to compulsory ABBA for availing PDS benefits. The Article notes the impact of PDS on the lives of the rural poor, who visit the ration shop every month. In "their fragile and uncertain lives", the PDS provides a "modicum of food and economic security". The Article notes that in ABBA, the failure of authentication result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on it for their survival is a grave injustice." Ibid, at page 58 As we have noted in an earlier part of this judgment, even the Economic Survey of India 2016-17 found a 49% failure rate for beneficiaries in Jharkhand and 37% in Rajasthan. Those at the receiving end are the poorest of the poor. Reetika Khera looks at the impact of Aadhaar-integration with security schemes (primarily in MGNREGA, PDS and social security pensions). Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political Weekly, Vol. 52 (16 December 2017), available at https://www.epw.in/journal/2017/50/special-articles/impact-aadhaar-welfareprogrammes. html The author also discusses briefly the impact of Aadhaar on liquefied petroleum gas (LPG) subsidy and the application of Aadhaar in the mid-day meal (MDM) scheme. In coming to its conclusions, the Article has relied upon quantitative data from primary field studies, secondary data from government portals, figures obtained through queries made under the Right to Information (RTI) Act, and responses to questions in Parliament. In Khera's words, Aadhaar is becoming a "tool of exclusion": "Savings or exclusion? The government claimed that A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs change over time. For persons, who are engaged in manual labour, and persons who are disabled or aged, fingerprints actually cannot be captured by biometric devices. The material which has been relied upon in this segment originates from government's official documents as well as from distinguished academics and researchers from civil society. There exist serious issues of financial exclusion. Pensions for the aged particularly in cases where a pension is earned for past service - are not charity or doles. They constitute legal entitlements. For an old age pensioner, vicissitudes of time and age obliterate fingerprints. Hard manual labour severely impacts upon fingerprints. The elderly, the disabled and the young are the most vulnerable and a denial of social welfare entitlements verily results in a deprivation of the right to life. Should the scholarship of a girl child or a midday meal for the young be made to depend on the uncertainties of biometric matches? Our quest for technology should not be oblivious to the country's real problems: social exclusion, impoverishment and marginalisation. The Aadhaar project suffers from crucial design flaws which impact upon its st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette: Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number. (3) The provisions of this Section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette. Explanation. - For the purposes of this section, the expressions - (i) "Aadhaar number", "Enrolment" and "resident" shall have the same meanings respectively assigned to them in Clauses (a), (m) and (v) of Section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); (ii) "Enrolment ID" means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment. 272. In Binoy Viswam v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue judgment and the courts do not examine the wisdom of legislative choices and, therefore, cannot undertake this exercise." Ibid, at page 125 274. In the decision of the Constitution Bench in Shayara Bano v. Union of India ("Shayara Bano"), (2017) 9 SCC 1 Justice Rohinton Nariman speaking for himself and Justice Uday U Lalit noticed that the dictum in McDowell, to the effect that "no enactment can be struck down by just saying it is arbitrary or unreasonable" had failed to notice the judgment of the Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi ("Ajay Hasia"), (1981) 1 SCC 722 and a three judge Bench decision in Dr K R Lakshmanan v. State of T N ("Lakshmanan") (1996) 2 SCC 226. In Ajay Hasia, the Constitution Bench traced the evolution of the doctrine of equality beyond its origins in the doctrine of classification. Ajay Hasia ruled that since the decision in E P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 it had been held that equality had a substantive content which, simply put, was the antithesis of arbitrariness. Consequently: "16....Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions, in the view of Justice Nariman, are therefore no longer good law: "99. However, in State of Bihar v. Bihar Distillery Ltd., SCC at para 22, in State of M.P. v. Rakesh Kohli, SCC at paras 17 to 19, in Rajbala v. State of Haryana, SCC at paras 53 to 65 and in Binoy Viswam v. Union of India, SCC at paras 80 to 82, McDowell 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 itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell are, therefore, no longer good law." Ibid, at page 97 In the above extract, Justice Nariman has specifically held that the McDowell test which barred a challenge to a law on the ground of arbitrariness ignored a binding Constitution Bench view in Ajay Hasia and that of a three judge Bench in Lakshmanan. Moreover, the above extract from Shayara Bano disapproves of the restriction on judicial review in Binoy Viswam, which follows McDowell. Justice Kurian Joseph, in the course of his decision has specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be fair, just and reasonable. Second, Article 14 impacts both the procedure and the expression "law". A law within the meaning of Article 21 must be consistent with the norms of fairness which originate in Article 14. As a matter of principle, once Article 14 has a connect with Article 21, norms of fairness and reasonableness would apply not only to the procedure but to the law as well." Ibid, at page 496 277. In Binoy Viswam, the two judge Bench held that while enrolment under the Aadhaar Act is voluntary, it was legitimately open to the Parliament, while enacting Section 139AA of the Income Tax Act to make the seeding of the Aadhaar number with the PAN card mandatory. The court held that the purpose of making it mandatory under the Income Tax Act was to curb black money, money laundering and tax evasion. It was open to Parliament to do so and its legislative competence could not be questioned on that ground. The court held that the legislative purpose of unearthing black money and curbing money laundering furnished a valid nexus with the objective sought to be achieved by the law: "105. Unearthing black money or checking money laundering is to be achieved to whatever extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said factors, it cannot be said that there is no nexus with the objective sought to be achieved." Ibid, at pages 134-135 The court observed that it was a harsh reality of our times that the benefit of welfare measures adopted by the State does not reach the segments of society for whom they are intended: "125.1.3... 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 ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country 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 the malaise in this field can be taken care of." Ibid, at page 146 In this context, the court also noted that as a result of de-duplication exercises, 11.35 lakh cases of duplicate PANs/fraudulent PANs had been detected out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment for purchase of any foreign currency at any one time. * Payment to a Mutual Fund for purchase of its units. * Payment to a company or an institution for acquiring debentures or bonds issued by it. * Payment to the Reserve Bank of India, constituted Under Section 3 of the Reserve Bank of India Act, 1934 (2 of 1934) for acquiring bonds issued by it. * Deposit with,-- * banking company or a co-operative bank to which the Banking Regulation Act, 1949 (10 of 1949), applies (including any bank or banking institution referred to in Section 51 of that Act); * Post Office. * Purchase of bank drafts or pay orders or banker's cheques from a banking company or a co-operative bank to which the Banking Regulation Act, 1949 (10 of 1949), applies (including any bank or banking institution referred to in Section 51 of that Act). * A time deposit with, -- * a banking company or a co-operative bank to which the Banking Regulation Act, 1949 (10 of 1949), applies (including any bank or banking institution referred to in Section 51 of that Act); * a Post Office; * a Nidhi referred to in Section 406 of the Companies Act, 2013 (18 of 2013); or * a non-banking financial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f SIM cards and Aadhaar numbers 279. In Avishek Goenka v. Union of India (2012) 5 SCC 275, a three judge Bench of this Court dealt with a public interest litigation seeking to highlight the non-observance of norms, Regulations and guidelines relating to subscriber verification by Telecom Service Providers (TSPs). The Department of Telecommunications (DoT), in the course of the proceedings, filed its instructions stating its position in regard to the verification of prepaid and postpaid mobile subscribers. While concluding the proceedings, this Court directed the constitution of an expert committee comprising of representatives of TRAI and DoT. The court mandated that the following issues should be examined by the Committee: "(a) Whether re-verification should be undertaken by the service provider/licensee, DoT itself or any other central body? (b) Is there any need for enhancing the penalty for violating the instructions/guidelines including sale of pre-activated SIM cards? (c) Whether delivery of SIM cards may be made by post? Which is the best mode of delivery of SIM cards to provide due verification of identity and address of a subscriber? (d) Which of the application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 today, a similar verification will be completed, in the case of existing subscribers. While complimenting the Petitioner for filing the instant petition, we dispose of the same with the hope and expectation, that the undertaking given to this Court, will be taken seriously, and will be given effect to, as soon as possible." Ibid, at page 156 Following the decision, DoT issued a directive on 23 March 2017 to all licensees stating that a way forward had been found to implement the directions of the Supreme Court. Based on the hypothesis that this Court had directed an E-KYC verification, DoT proceeded to implement it on 23 March 2017. 281. Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf of UIDAI and the State of Gujarat supported the measure. He submitted that the licences of all TSPs are issued Under Section 4 of the Indian Telegraph Act 1885. Since the Central Government has the exclusive privilege of establishing, maintaining and working telegraphs, TSPs, it was ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the state cannot disregard the countervailing requirements of preserving the integrity of biometric data and the privacy of mobile phone subscribers. Nor can we accept the argument that cell phone data is so universal that one can become blase about the dangers inherent in the revealing of biometric information. 284. The submission that a direction of this nature could have been given to TSPs Under Section 4 of the Indian Telegraph Act 1885 does not answer the basic issue of its constitutional validity, which turns upon the proportionality of the measure. Having due regard to the test of proportionality which has been propounded in Puttaswamy and as elaborated in this judgment, we do not find that the decision to link Aadhaar numbers with mobile SIM cards is valid or constitutional. 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 legitimate state aim and should not be either disproportionate or excessive in their encroachment on individual liberties. 285. Mobile technology has become a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence. (b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money laundering. (c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are- (i) declaration of laundering of monies carried through serious crimes a criminal offence; (ii) to work out modalities of disclosure by financial institutions regarding reportable transactions; (iii) confiscation of the proceeds of crime; (iv) declaring money-laundering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion number as defined Under Sub-section (a) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016; (aab) "authentication" means the process as defined Under Sub-section (c) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016; (aac) "Resident" means an individual as defined Under Sub-section (v) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016; (aad) "identity information" means the information as defined in Sub-section (n) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016; (aae) "e - KYC authentication facility" means an authentication facility as defined in Aadhaar (Authentication) Regulations, 2016; (aaf) "Yes/No authentication facility" means an authentication facility as defined in Aadhaar (Authentication) Regulations, 2016..." Similarly, the expression "officially valid document" was amended to read as follows: "(d) "officially valid document" means the passport, the driving licence, the Permanent Account Number (PAN) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through one or more juridical person, has I ownership of/entitlement to more than fifteen per cent of capital or profits of the partnership; (c) where the client is an unincorporated association or body of individuals, the beneficial owner is the natural person(s), who, whether acting alone or together, or through one or more juridical person, has ownership of or entitlement to more than fifteen per cent of the property or capital or profits of such association or body of individuals; (d) where no natural person is identified under (a) or (b) or (c) above, the beneficial owner is the relevant natural person who holds the position of senior managing official; (e) where the client is a trust, the identification of beneficial owner(s) shall include identification of the author of the trust, the trustee, the beneficiaries with fifteen per cent or more interest in the trust and any other natural person exercising ultimate effective control over the trust through a chain of control or ownership; and (f) where the client or the owner of the controlling interest is a company listed on a stock exchange, or is a subsidiary of such a company, it is not necessary to identify and verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haar number and Permanent Account Number by 31st December, 2017. (c) In case the client fails to submit the Aadhaar number and 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 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." 289. The statutory mandate for the framing these Rules is contained in Sections 12, 15 and 73 of the PMLA. Insofar as is material, Section 12 provides as follows: "12. Reporting entity to maintain records: (1) Every reporting entity shall- (a) maintain a record of all transactions, including information relating to transactions covered under Clause (b), in such manner as to enable it to reconstruct individual transactions; (b) furnish to the Director within such time as may be prescribed, infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or all or any of the following matters, namely- (j) the manner and the conditions in which identity of clients shall be verified by the reporting entities under Clause (c) of Sub-section (1) of Section 12; (jj) the manner of identifying beneficial owner, if any, from the clients by the reporting entities under Clause (d) of Sub-section (1) of Section 12; (k) the procedure and the manner of maintaining and furnishing information Under Sub-section (1) of Section 12 as required Under Section 15; (x) any other matter which is required to be, or may be, prescribed." Section 12(1)(c) requires the reporting entity to verify the identity of its clients "in such manner and subject to such conditions" as may be prescribed. The provisions of the rules, including Sub-rule 17(c) of Rule 9 have been challenged on the ground that they suffer from the vice of excessive delegation. 290. In Bombay Dyeing and Mfg v. Bombay Environmental Action Group (2006) 3 SCC 434, this Court has re-affirmed the well-settled legal test which determines the validity of delegated legislation. The court held: "104...By reason of any legislation, whether enacted by the legislature or by way of subordinate l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(4) required the submission to the reporting entity, where the client is an individual, a certified copy of an officially valid document containing details of identity and address. Rule 9(4) read as follows: "(4) Where the client is an individual, he shall for the purpose of Sub-rule (1), submit to the reporting entity, one certified copy of an "officially valid document" containing details of his identity and address, one recent photograph 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:" Under Rule 9(14), the regulator was empowered to issue guidelines, in terms of the provisions of the rule, and to prescribe enhanced or simplified measures to verify the identity of a client, taking into consideration the type of client, business relationship, and the nature and value of transactions based on the overall money-laundering and terrorist financing risks involved. Under the above Rules there were six 'officially valid documents': the passport, driving licence, Permanent Account Number (PAN) Card, NREGA job card, Voter's Identity Card and a letter of UIDAI containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss relationship which is not KYC compliant, banks shall ordinarily take step to terminate the existing business relationship after giving due notice. (b) As an exception to the Rule, banks shall have an option to choose not to terminate business relationship straight away and instead opt for a phased closure of operations in this account as explained below: i. The option of 'partial freezing' shall be exercise after giving due notice of three months to the customers to comply with KYC requirements. ii. A reminder giving a further period of three months shall also be given. iii. Thereafter, 'partial freezing' shall be imposed by allowing credits and disallowing all debits with the freedom to close the accounts in case of the account being KYC non-compliant after six months of issue first notice. iv. All debits and credits from/to the accounts shall be disallowed, in case of the account being KYC non-compliant after six months of imposing 'partial freezing', v. The account holders shall have the option, to revive their accounts by submitting the KYC documents. (c) When an account is closed whether without 'partial freezing' or after ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comply with FATCA norms. The existence of a legitimate state aim satisfies only one element of proportionality. In its submissions, the Union government has dealt only with legitimate aim, leaving the other elements of proportionality unanswered. Requiring every client in an account based relationship to link the Aadhaar number with a 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lined in this judgment. J. Savings in Section 59 297. Section 59 of the Aadhaar Act provides: "Anything done or any action taken by the Central 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. 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." 298. The Petitioners have submitted that all acts done pursuant to the Notifications dated 28 January 2009 and 12 September 2015, under which the Aadhaar programme was created and implemented, violate fundamental rights and were not supported by the authority of law. It has been submitted that the collection, storage and use of personal data by the State and private entities, which was done in a legislative vacuum as the State failed to enact the Aadhaar Act for six years, is now being sought to be validated by Section 59. It has been contended that since the acts done prior to the enactment of the Aadhaar Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identity information violates the right to privacy, does not prevent the Parliament from enacting a validating clause. Reliance has also been placed on State of Karnataka v. State of Tamil Nadu: (2017) 3 SCC 362 to submit that Section 59 creates a deemed fiction as a result of which one has to imagine that all actions taken under the notifications were taken under the Act. 300. Section 7 provides that the Central Government or the State Governments may require proof of an Aadhaar number as a necessary condition for availing a subsidy, benefit or service for which the expenditure is incurred from the Consolidated Fund of India. Section 3 provides that the Aadhaar number shall consist of demographic and biometric information of an individual. "Biometric information", Under Section 2(g), means a photograph, finger print, Iris scan, or such other biological attributes of an individual as may be specified by Regulations. Section 4(3) provides that an Aadhaar number may be used as a proof of identity "for any purpose". Section 57 authorizes a body corporate or person to use the Aadhaar number for establishing the identity of an individual "for any purpose". The proviso to Section 57 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of the generation of Aadhaar numbers. The notification gave no authority to collect biometrics. Biometrics, finger prints or iris scans were not within its purview. There was no mention of the safeguards and measures relating to the persons or entities who would collect biometric data, how the data would be collected and how it would be used. The website of the Press Information Bureau of the Government of India states that, by the time Aadhaar Act was notified by the Central government, UIDAI had generated about 100 crore Aadhaar numbers. Press Information Bureau, UIDAI generates a billion (100 crore) Aadhaars A Historic Moment for India, available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=138555 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 provision does not extend to the collection of biometric data before 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n regime. The Aadhaar Act provides certain safeguards in Section 3(2) and Section 8(3) for the purposes of 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 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 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 of law. Moreover, it is a principle of criminal law that it cannot be applied retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Information) Rules, 2011 made by the Central government Under Section 43A, defines "sensitive personal data or information": "Sensitive personal data or information of a person means such personal information which consists of information relating to: (i) password; (ii) financial information such as Bank account or credit card or debit card or other payment instrument details; (iii) physical, physiological and mental health condition; (iv) sexual orientation; (v) medical records and history; (vi) Biometric information; (vii) any detail relating to the above clauses as provided to body corporate for providing service; and (viii) any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise. Provided that, any information that is freely available or accessible in public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules." Section 66C provides a punishment for identity theft: "66C. Punishment for identity theft.- Whoever, fraudulentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 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 provisions of the Information Technology Act. Indeed, it was the absence of those safeguards in the Information Technology Act which required their introduction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or directions, notifications, proceeding, acts or things were made, given, issued, taken or done are hereby declared to have been validly made, given, issued, taken or done, as the case may be, except to the extent to which the said orders, decisions, directions, notifications, proceedings, acts or things are repugnant to the provisions of this Act." (Emphasis supplied) Section 24 was held to be a provision, which saved and validated actions validly taken under the provisions of the earlier Act, which was invalid from the inception. Justice Gajendragadkar, speaking for the Court, interpreted Section 24 thus: "12. The first part of the Section deals, inter alia, with notifications which have been validly issued under the relevant provisions of the earlier Act and it means that if the earlier Act had been valid at the relevant time, it ought to appear that the notifications in question could have been and had in fact been made properly under the said Act. In other words, before any notification can claim the benefit of Section 24, it must be shown that it was issued properly under the relevant provisions of the earlier Act, assuming that the said provisions were themselves valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any court: (a) every acquisition of land for the purpose of improvement, expansion or development of the City of Bangalore or any area to which the City of Bangalore Improvement Act, 1945, extends, made by the State Government acting or purporting to act under the Mysore Land Acquisition Act, 1894 (Mysore Act 7 of 1894), at any time before the commencement of this Act, and every proceeding held, notification issued and order made in connection with the acquisition of land for the said purpose shall be deemed for all purposes to have been validly made, held to issue, as the case may be, and any acquisition proceeding commenced under the Mysore Land Acquisition Act, 1894, for the said purpose before the commencement of this Act but not concluded before such commencement, may be continued under the Land Acquisition Act, 1894 (Central Act 1 of 1894), as extended to the State of Mysore by the Land Acquisition (Mysore Extension and Amendment) Act, 1961, and accordingly no acquisition so made, no proceeding held, no notification issued and no order made by the State Government or by any authority under the Mysore Land Acquisition Act, 1894, or the Land Acquisition Act, 1894, in connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The decision in Chetty in fact brings out the essential attributes of a validating law. The existence of two legislations governing the field of land acquisition had been found to be discriminatory and hence violative of Article 14 by the High Court (on the basis of the position in law as it then stood). During the pendency of the appeal before this Court, the legislature enacted a validating law which removed the cause for invalidity. The reason the state law had been invalidated by the High Court was the existence of two laws governing the same field. This defect was removed. To use the words of this Court, the legislature "put out of action retrospectively one of the procedures" as a result of which only one procedure was left in the field. The decision in Chetty thus brings out the true nature of a validating law. A validating law essentially removes the deficiency which is found to exist in the earlier enactment. By curing the defect, it validates actions taken under a previous enactment. 311. The third judgment of seven judges is in Hari Singh. The constitutionality of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was challenged on the ground that Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws retrospective in operation for the purpose of validation of action done under an earlier Act which has been declared by a decision of the court to be invalid. It is to be appreciated that the validation is by virtue of the provisions of the subsequent piece of legislation." In Hari Singh, the validating Act retrospectively authorised the actions undertaken under the previous Act, which had been invalidated by a court decision. The validating law of 1971 was enacted with retrospective effect from 1958. 312. Reliance was placed by the Respondents on the judgments of this Court in Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh (1966) 1 SCR 523 (Jaora Sugar Mills), SKG Sugar Ltd. v. State of Bihar (1974) 4 SCC 827 ("SKG Sugar") and Krishna Chandra Gangopadhyaya v. Union of India (1975) 2 SCC 302 ("Krishna Chandra"), to contend that in the case of fiscal legislation, where an enactment was struck down for violating Article 265 or the fundamental rights, of a citizen, validating Acts were enacted after removing the flaw and that in cases where the state Legislature was held to be incompetent to enact a taxing measure, a validating law was enacted by Parliament by making a sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of this Act, shall be deemed to have been validly imposed, assessed or collected in accordance with law as if this Act had been in force at all material times when such cess or tax was imposed, assessed or collected and accordingly...." Ibid, at page 831 (Emphasis supplied) The Constitution Bench held: "32... By virtue of the legal fiction introduced by the validating provision in Section 66(1), the impugned notification will be deemed to have been issued not necessarily under the Ordinance No. 3 of 1968 but under the President's Act, itself, deriving its legal force and validity directly from the latter." Ibid, at page 835 315. In Krishna Chandra, provisions of the Bihar Land Reforms Act, 1950 were struck down for want of legislative competence. Parliament enacted the Mines and Minerals (Regulation and Development) Act, 1957 to validate those provisions with retrospective effect. Section 2 provided that: "1...(2). Validation of certain Bihar State laws and action taken and things done connected therewith.- (1) The laws specified in the Schedule shall be and shall be deemed always to have been, as valid as if the provisions contained therein had been enacted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the earlier law are deemed to have been removed. The validating law must remove the deficiencies. There were several deficiencies in the collection of biometric data during the period between 2009 and 2016, before 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 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, the collection of biometric data prior of the enactment of Aadhaar Act 2016 is ultra vires. 318. Section 59 does not remove the cause for invalidity. First, Section 59 protects actions taken under the notification of 2009. The notification does not authorize the collection of biomet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the day on which that thing was done or action was taken. The things done or actions taken under the repealed ordinance are to be deemed by fiction to have been done or taken under the repealing Act. The actions were validated because the Act, in this case, was deemed to be "in force on the day on which such thing was done or action was taken". Section 59 of the Aadhaar Act does not create this fiction. The Aadhaar Act does not come in force on the date on which the actions, which this Section seeks to validate, were taken. 320. A three judge Bench headed by one of us, Hon'ble Mr. Justice Dipak Misra (as the learned Chief Justice then was) in State of Karnataka v. State of Tamil Nadu (2017) 3 SCC 362, was dealing with a batch of civil appeals filed against a final order of the Cauvery Water Disputes Tribunal constituted under the Inter-State River Water Disputes Act, 1956. Section 6(2) of the 1956 Act provides: "72...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." Ibid, at page 405 Relying on Section 6(2), it was conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Rule in existence. The Court held that since the Orissa Act merely regularised the appointment of graduate Stipendiary Engineers working as ad hoc Assistant Engineers as Assistant Engineers, it could not be described as a validating law. It was held the legislation did not validate any such nonexistent act, but simply appointed the ad hoc Assistant Engineers as substantive employees of the State by resort to a fiction. This Court held: "31...a prior judicial pronouncement declaring an act, proceedings or Rule to be invalid is not a condition precedent for the enactment of a Validation Act. Such a piece of legislation may be enacted to remove even a perceived invalidity, which the Court has had no opportunity to adjudge. Absence of a judicial pronouncement is not, therefore, of much significance for determining whether or not the legislation is a validating law." Ibid, at page 604 The Court further held that: "25. ... when the validity of any such Validation Act is called in question, the Court would have to carefully examine the law and determine whether (i) the vice of invalidity that rendered the act, rule, proceedings or action invalid has been cured by the validating l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67880.001.0001/acprof-9780199267880-chapter-2 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 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. Denise Meyerson, The Rule of Law and the Separation of Powers (2004), available at http://www5.austlii.edu.au/au/journals/MqLJ/2004/1.html 324. The concepts of the Rule of law and separation of powers have been integral to Indian constitutional discourse. While both these concepts have not been specified in as many words in the Constitution, they have received immense attention from this Court in its judgments. Though the Indian Constitution does not follow the doctrine of separation of powers in a rigid sense, the following statement of the law by Chief Justice Mukherjea in Ram Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 is widel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court. Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 (Supp.) SCC 1; State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640]; I .R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu, (2007) 2 SCC 1. In Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1, Chief Justice AN Ray held the Rule of law to be the basis of democracy. The functional relationship between separation of powers and the Rule of law was discussed by a Constitution Bench of this Court in State of Tamil Nadu v. State of Kerala (2014) 12 SCC 696, as follows: 98. Indian Constitution, unlike the Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized separation of power as a basic feature of the Constitution and an essential constituent of the Rule of law. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the Constitution. Indian Constitution has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. A seven judge Bench of this Court, in L Chandra Kumar v. Union of India (1997) 3 SCC 261, declared: "78... the power of judicial review over legislative action vested in the High Courts Under Article 226 and in the Supreme Court Under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure." Ibid, at page 301 The complementary relationship between judicial review, the Rule of law and the separation of powers is integral to working of the Constitution. This Court in I R Coelho v. State of Tamil Nadu (2007) 2 SCC 1 held thus: "129... Equality, Rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no Rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary." Ibid, at page 58 Judicial review, by pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional necessity. 328. In a constitutional democracy, the power of government, is defined, limited, and distributed by the fundamental norms of the Constitution. A constitutional democracy holds its political regime accountable, responsible, or answerable for its decisions and actions while in public office. Almon Leroy Way, Jr., Constitutional Democracy & Other Political Regimes, available at http://www.proconservative.net/CUNAPolSci201PartTWOA.shtml A constitutional democracy determines the degree and manner of distribution of political authority among the major organs or parts of the government. The limits of each institution are set by the Constitution. No institution which has been created by the Constitution can have absolute power. Separation of powers, envisaged by the Constitution between different institutions acts as a check and balance among the institutions and promotes the Rule of law by ensuring that no institution can act in an arbitrary manner. Judicial review as a part of the basic structure of the Indian Constitution and as an essential component of the Rule of law and separation of powers, is intended to ensure that every institution acts within its limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. It is also a basic principle of the Rule of law which permeates every provision of the Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the executive and other authorities...." Ibid, at pages 128-129 (Emphasis supplied) 330. In I R Coelho v. State of Tamil Nadu (2007) 2 SCC 1, a nine judge Bench held that control over government power ensures that the foundational values of a democracy are not damaged: "43...The principle of constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision-making...The role of the judiciary is to protect fundamental rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aar 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." (sic) This was followed by an order dated 26 November 2013 where the earlier order was continued: "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 counsel... Interim order to continue, in the meantime." While considering another petition, Unique Identification Authority of India v. Central Bureau of Investigation SLP (Crl.) No. 2524/2015, this Court directed in an interim order dated 24 March 2014: "In the meanwhile, the present Petitioner is restrained from transferring any biometric information of any person who has been 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 so as to not compulsorily requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions), Prime Minister's Jan 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. 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 is finally decided by this Court one way or the other." After the Aadhaar Act was enacted there was a challenge in All Bengal Minority Students Council v. Union of India WP (Civil) No. 686/2016, to a letter written to the Chief Secretaries/Administrators of all State Governments/Union territory Administrations by the Under Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the basis of the Court's judgment or order is removed. It has been held by this Court in Bhubaneshwar Singh v. Union of India (1994) 6 SCC 77: "11. From time to time controversy has arisen as to whether the effect of judicial pronouncements of the High Court or the Supreme Court can be wiped out by amending the legislation with retrospective effect. Many such Amending Acts are called Validating Acts, validating the action taken under the particular enactments by removing the defect in the statute retrospectively because of which the statute or the part of it had been declared ultra vires. Such exercise has been held by this Court as not to amount to encroachment on the judicial power of the courts. The exercise of rendering ineffective the judgments or orders of competent courts by changing the very basis by legislation is a well-known device of validating legislation. This Court has repeatedly pointed out that such validating legislation which removes the cause of the invalidity cannot be considered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a court cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right. The collection and storage of biometric data and its use for the purpose of authentication is the subject of a constitutional challenge. Noting the nature of the challenge and after considering the serious issues which have arisen in the case, successive benches of this Court issued a series of interim directions. The purport of those directions is that Aadhaar could not be made mandatory except for specified schemes which were listed by the court. Moreover, in the context of the serious grievance of financial exclusion, the court directed that no individual should be excluded from the receipt of welfare entitlements, such as food-grains, for want of an Aadhaar number. The constitutional challenge was not obviated merely on the enactment of the Aadhaar Act. The law gave a statutory character to a project which since 2009 was possessed of an administrative or executive nature. The constitutional challenge to some of the basic features underlying the collection of biometric data still remained to be addressed by the court. The proceedings before this Court are testimony to the fact that the issue of constitutionality was indeed live. That being the position, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the Rule of law is maintained and every organ of the State is kept within the limits-of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound, the death-knell of the Rule of law. The Rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet get away with it." Ibid, at page 369 (Emphasis supplied) 336. A Bench of two judges in Re: Arundhati Roy (2002) 3 SCC 343 held that for the courts to protect the Rule of law, it is necessary that the dignity and authority of the courts have to be respected and protected. It was held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal." (Emphasis supplied) Many citizens, although aggrieved, are not in a condition to reach the highest Court. The poorest and socially neglected lack resources and awareness to reach this Court. Their grievances remain unaddressed. Such individuals suffer injury each day without remedy. Disobedience of the interim orders of this Court and its 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. Constitutional morality, as an essential component of the Rule of law, must neutralise the excesses of power by the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view. The judgment has analyzed the scope of the finality attributed to the Speaker's decision, by looking at the history of Article 110(3) of the Constitution, by comparing it with the comparative constitutional practices which accord finality to the Speaker's decision, by analyzing other constitutional provisions which use the phrase "shall be final", and by examining the protection granted to parliamentary proceedings Under Article 122. This judgment holds that: (a) The phrase "shall be final" used Under Article 110(3) aims at avoiding any controversy on the issue as to whether a Bill is a Money Bill, with respect to the Rajya Sabha and before the President. The language used in Article 110(3) does not exclude judicial review of the Speaker's decision. This also applies to Article 199(3). (b) The immunity from judicial review provided to parliamentary proceedings Under Article 122 is limited to instances involving "irregularity of procedure". The decisions of this Court in Special Reference, Ramdas Athawale and Raja Ram Pal hold that the validity of proceedings in Parliament or a State Legislature can be subject to judicial review when there is a substantive ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of a constitutional institution cannot be countenanced by the Court. Democracy survives when constitutional institutions are vibrant. (3) The Aadhaar Act creates a statutory framework for obtaining a unique 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 Section 7. Clause (e) of Article 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 increasing the amount of the expenditure). Section 7 fails to fulfil this requirement. Section 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 of them. Moreover, provisions other than Section 7 of 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 individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. This judgment accepts the contention of the Union of India that there is a legitimate state aim in maintaining a system of identification to ensure that the welfare benefits provided by the State reach the beneficiaries who are entitled, without diversion. (7) 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 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 for each step from the collection to retention of biometric data. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (12) There is no clarity on how an individual is supposed to update his/her biometric information, in case the biometric information mismatches with the data stored in CIDR. The proviso to Section 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 individual. UIDAI is also provided wide powers in relation to removing the biometric locking of residents. With this 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, this judgment concludes that the Aadhaar programme violates essential norms pertaining to informational privacy, self-determination and data protection. (13) The State is under a constitutional obligation to safeguard the dignity of its citizens. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the verification log poses an additional risk of an individual's biometric data being vulnerable to unauthorised exploitation by third parties. (c) 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 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 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 Article 14. (h) No substantive provisions, such as those providing data minimization, have been laid down as guiding principles for the oversight mechanism provided Under Section 33(2), which permits disclosure of identity information and authentication records in the interest of national security. (i) Allowing private entities to use Aadhaar numbers, Under Section 57, 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 and preferences of individuals. These preferences could also be used to influence the decision makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution. (15) Section 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. Section 59 does not validate 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 Section 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 infirmity or invalidity. Section 59 fails to cure the cause of invalidity prior to the enactment of the Aadhaar Act. The 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 enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of mobile subscribers must necessarily be viewed in this light. Applying the proportionality test, the legitimate aim of subscriber verification, has to be balanced against the countervailing requirements of preserving the integrity of biometric data and the privacy of mobile phone subscribers. Mobile phones are a storehouse of personal data and reflect upon individual preferences, lifestyle and choices. 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 and as elaborated in this judgment, the decision to link Aadhaar numbers with mobile SIM cards is neither valid nor constitutional. The mere existence of a legitimate state aim will not justify the disproportionate means which have been adopted in the present 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. (20) Defiance of judicial orders (both interim and final) be it by the government or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his judgment. JUDGMENT Ashok Bhushan, J. The challenge in this batch of cases can be divided in two parts, firstly, the challenge to Executive's Scheme dated 28.01.2009 notified by the Government of India, by which the Unique Identification Authority of India (hereinafter referred to as "UIDAI") was constituted to implement the UIDAI Scheme, and secondly challenge to The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as "Act, 2016"). 2. The group of cases can be divided into four broad heads. First head consists of the sixteen Writ Petitions filed Under Article 32 of the Constitution of India in this Court challenging the notification dated 28.01.2009 and/or the Act, 2016. Second group consists of seven Transfer Cases/Transfer petitions to be heard alongwith Writ Petitions filed Under Article 32. Group three consists of only one Special Leave Petition (Criminal) No. 2524 of 2014 filed by UIDAI and Anr. Fourth group consists of seven Contempt Petitions, which have been filed alleging violation of the interim orders passed by this Court in Writ Petitions and SLP (Criminal) as noted above. 3. Before we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Authority of India (hereinafter referred to as "UIDAI") was accepted with several guidelines laying down the roles and responsibilities of the UIDAI. The UIDAI was constituted under the aegis of Planning Commission of India. The Notification dated 28.01.2009 was issued constituting the UIDAI, providing for its composition, roles and responsibilities. 6. In the year 2010, a bill namely the National Identification Authority of India Bill, 2010 providing for the establishment of the National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals, manner of authentication of such individuals to facilitate access to benefits and services to which they are entitled and for matters connected therewith or incidental thereto was introduced. The Bill was pending in the Parliament when the first Writ Petition i.e. Writ Petition (C) No. 494 of 2012-Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. Was filed. The Writ Petition Under Article 32 was filed on the ground that fundamental rights of the innumerable citizens of India namely Right to Privacy falling Under Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2016, which contains following preamble: "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." 10. The Writ Petition (C) No. 231 of 2016-Shri Jairam Ramesh v. Union of India and Ors., was filed by Shri Jairam Ramesh seeking a direction declaring the Act, 2016 as unconstitutional, null and void and ultra vires. Writ Petition (C) No. 797 of 2016-S.G. Vombatkere and Ors. v. Union of India and Ors., was also filed by S.G. Vombatkere and Bezwada Wilson challenging the Act, 2016. The Petitioners have also referred to earlier Writ Petition (C) No. 829 of 2013 and Writ Petition (C) No. 220 of 2015. The writ Petitioners alleged various grounds for challenging the Act, 2016. Apart from seeking a direction to declare the Act, 2016 ultra vires, unconstitutional and null and void, prayers for declaring various Sections of Act, 2016 as ultra vires, unconstitutional and null and void were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the Aadhaar Card copy. The Petitioner placed reliance on Order of this Court dated 14.09.2016 in Writ Petition (C) No. 686 of 2016. Writ Petition (C) No. 841 of 2017 has also been filed by State of West Bengal challenging various notifications issued Under Section 7 of the Act, 2016. The Petitioner also sought a direction declaring that no person may be deprived of receiving any benefit or services from the State on the ground that he or she does not have an Aadhaar number or Aadhaar enrolment. Writ Petition (C) No. 1058 of 2017-Mathew Thomas v. Union of India and Ors. has been filed challenging the Act, 2016. The writ Petitioner also prayed for declaring Prevention of Money Laundering Rules (Second Amendment) 2017 as violative of Articles 14, 19 and 21 of the Constitution. Section 139AA of the Income Tax Act, 1961 was also prayed to be declared as violative of Articles 14, 19 and 21 of the Constitution. 12. Writ Petition (C) No. 966 of 2017-Raghav Tankha v. Union of India through its Secretary and Ors. has been filed seeking following prayers: "a) Issue a Writ of Mandamus or any other appropriate writ, order or direction Under Article 32 of the Constitution of India, directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandamus as this Hon'ble Court may deem fit an proper in the circumstances of the case. 14. Writ Petition (C) No. 1002 of 2017-Dr. Kalyani Menon Sen v. Union of India and Ors. also sought declaration that Rule 2(b) of the Prevention of Money Laundering (Maintenance of Records) Second Amendment Rules, 2017 is ultra vires. Circular dated 23.03.2017 issued by the Department of Telecommunication was also sought to be declared as ultra vires, unconstitutional, null and void. A further direction was sought declaring that pursuant to the Circular dated 23.03.2017, the mobile phone numbers of subscribers will not be made in-operational, and future applicants will not be coerced to submit their Aadhaar numbers. Certain other reliefs have also been claimed in the writ petition. Writ Petition (C) No. 1056 of 2017-Nachiket Udupa and Anr. v. Union of India and Ors. has been filed challenging the Act, 2016 and with other prayers, which is as follows: A. Issue a Writ of Declaration and Mandamus or any other appropriate Writ, Direction, Order or such other appropriate remedy to declare the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 [ACT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process of authentication and/or identity verification of mobile numbers; I. Pass such further and other orders as this Hon'ble Court may deem fit and proper in the instant facts and circumstances." 15. There are seven Transfer Cases/Transfer Petitions to be heard alongwith the Writ Petitions filed Under Article 32, where the issues pertaining to UID Scheme and other related issues were also raised before different High Courts. Four Transfer Applications have been filed by Indian Oil Corporation Limited praying for transfer of different writ petitions pending in different High Courts to be heard alongwith Writ Petition (C) No. 494 of 2012-Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., which was considering the same issues. This Court had passed order in few transfer petitions allowing the same and issued certain directions, rest of transfer petitions are also allowed. 16. One Transfer Petition has also been filed by Union of India for transferring Writ Petition (C) No. 2764 of 2013-Sri v. Viswanandham v. Union of India and Ors., pending in the High Court of Hyderabad. It is not necessary to notice various issues in the pending different writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any order of issuing notice in the contempt petitions. 19. Writ Petition (C) No. 494 of 2012: Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. has been treated as leading petition wherein various orders and proceedings have been taken, few of such orders and proceedings also need to be noted. An interim order dated 23.09.2013 was passed in Writ Petition (C) No. 494 of 2012 which is to the following effect: "Issue notice in W.P.(C) No. 829/2013. Application for deletion of the name of Petitioner No. 1 in T.P.(C) Nos. 47 of 2013 is allowed. T.P.(C) Nos. 47-48 of 2013 and T.P.(C) No. 476 of 2013 are allowed in terms of the signed order. 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 inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to 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. 20. By order dated 26.11.2013 all the States and Union Territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, except as may be directed by a Court for the purpose of criminal investigation. Ordered accordingly." 23. A Constitution Bench of five Judges on 15.10.2015 passed an order after hearing application filed by the Union of India for seeking certain clarification/modification in the earlier order dated 11.08.2015, part of order, which is relevant for the present case is as follows: "3. After hearing the learned Attorney General for India and other learned senior Counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan 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. 5. We will also make it clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.07.2017. Liberty is granted to the learned Counsel appearing for the rival parties to submit their written briefs in the meantime." 26. A nine-Judge Constitution Bench proceeded to hear and decide all aspects of right of privacy as contained in the Constitution of India. 27. Dr. D.Y. Chandrachud delivered opinion on his behalf as well as on behalf of Khehar, CJ., Agrawal, J. and Nazeer, J. Jasti Chelameswar, J., Bobde, J., Sapre, J. and Kaul, J. also delivered concurring, but separate opinions. The opinion of all the nine Judges delivered in above cases held that right of privacy is a right which is constitutionally protected and it is a part of protection guaranteed Under Article 21 of the Constitution of India. Explaining the essential nature of privacy, Dr. D.Y. Chandrachud, J. in paragraphs 297 and 298 laid down following: "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 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal rights and protects for the individual a zone of choice and self-determination." 28. Privacy has been held to be an intrinsic element of the right to life and personal liberty Under Article 21 and has a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. It was further held that 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 place under a regime of law. The procedure established by law must be fair, just and reasonable. 29. The nine-Judge Constitution Bench also noticed the context of right of privacy under the international covenants. The protection of right of privacy as developed in U.K. decision, decisions of US Supreme Court, constitutional right to privacy in South Africa, constitutional right to privacy in Canada, privacy under European convention on human rights and under Charter of fundamental rights of European Union were considered with reference to decision rendered by foreign courts. 30. Justice D.Y. Chandradhud in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give a power presentation to explain actual working of the system. After the power presentation was presented by Dr. Pandey in the presence of the learned Counsel for the parties, learned Counsel have also thereafter raised certain questions in respect of the power presentation, which the Respondents during submissions have tried to explain. In view of the enormity of submissions raised by the different learned Counsel appearing for the Petitioners, we proceed to notice different part of submissions together. As noted above writ petitions have been filed at two stages, firstly, when UIDAI Scheme was being impleaded by the Executive order dated 28.01.2009. Secondly, challenge was raised when Act, 2016 was enacted. The challenge to the Scheme dated 24.01.2009 contained almost same grounds on which Act, 2016 has been attacked. Additional ground to challenge the Scheme was that Scheme having not been backed by law, the entire exercise was unconstitutional and violative of fundamental rights guaranteed under the Constitution of India and deserved to be set aside. The Act, 2016 having enacted and now statutory scheme is in place, we shall first proceed to notice the submissions attacking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of India. A legitimate State aim, which ensure that nature and content of the law, which imposes the restriction falls within the reasonable restrictions mandated by Article 14 is also not fulfilled. State has not been able to discharge its burden that Aadhaar project has been launched for a legitimate State aim. The third requirement, which require that the means that are adopted by the legislature are proportional to the object sought to be fulfilled by the law is also not fulfilled since the provisions of the Act and Regulations framed thereunder does not satisfy the Proportionality Test. The various provisions of Act, 2016 and Regulations framed thereunder are unconstitutional. Section 6 of the Act, 2016 is unconstitutional inasmuch as it enable the Respondents to continually compel residents to periodically furnish demographic and biometric information. Section 7 of the Act, 2016 is unconstitutional inasmuch as it seeks to render the constitutional and statutory obligations of the State to provide benefits, subsidies and services, conditional upon an individual bartering his or her biometric and demographic information. Section 8 is unconstitutional since it enables track ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hod of identification. There is large scale exclusion to the mostly marginalised society not being able to identify themselves by identification process. There is sufficient material on record to indicate general deprivation, which itself is sufficient to struck down Section 7 of the Act. 40. Elaborating submission on unconstitutionality of Section 57, it is contended that Section 57 allows an unrestricted extension of the Aadhaar information to users who may be Government agencies or private sector operators. Section 57 enables commercial exploitation of an individual's biometrics and demographic information by the Respondents as well as private entities. The provision also ensures creation of a surveillance society, where every entity assists the State to snoop upon an Aadhaar holder. The use of Aadhaar infrastructure by private entities is unconstitutional. 41. Elaborating submissions on Section 59, it is contended that Section 59 is unconstitutional inasmuch as it seeks to validate all action undertaken by the Central Government pursuant to the notification dated 28.01.2009. Enrolment in pursuance of notification dated 28.01.2009 having been done without an informed conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) all nine Judges uniformly agreed that privacy is a fundamental right traceable to the right to liberty Under Article 21 of the Constitution and hence subject to the same limitations as applicable to the said Article. It has further been held that right of privacy is not absolute and is subject to limitations. Justice D.Y. Chandrachud in his lead judgment laid down that following three tests are required to be satisfied for judging the permissible limits of the invasion of privacy Under Article 21 of the Constitution: (a) The existence of a law; (b) A legitimate State interest; and (c) The said Law should pass the test of proportionality. 49. The above tests have also been agreed by other Judges who have delivered the separate judgment. Justice J. Chelameswar and Justice A.N. Sapre have used the test of compelling State interest whereas Justice R.F. Nariman stated that if this test is applied, the result is that one would be entitled to invoke larger public interest in lieu of legitimate State aim. The legitimate State aim obviously will lead to public interest, hence in the event test of legitimate State aim is fulfilled, the test of public interest stands fulfilled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Executive instructions issued for this purpose would be valid as well as the receipt of benefits and subsidies by the beneficiaries. In any view of the matter, Section 59 of the Act protects all actions taken during the period 2010 until the passing of the Aadhaar Act in 2016. 52. Learned Attorney General submitted that Aadhaar Act has rightly been characterised as Money Bill as understood Under Article 110 of the Constitution. The heart of the Aadhaar Act is Section 7. It is not the creation of Aadhaar number per se which 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. The decision of the Speaker incorporated into a certificate sent to the President is final and cannot be the subject matter of judicial review. 53. The decision and certification of the Speaker being a matter of procedure is included in the Chapter under the head 'Legislative Procedure' which clearly excluded judicial review. The present issue is squarely covered by the decisions of this Court. 54. Section 57, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that prior to 01.07.2017 already 1.75 crore tax payers had linked their PAN with Aadhaar on a voluntary basis. Replying the arguments based on the interim orders passed by this Court in the present group of petitions, it is submitted that enactment of Aadhaar Act, 2016 has taken away and cured the basis of the interim order passed by this Court since one of the submissions which was made before this Court in passing the interim orders was that there was no law, that Aadhaar project was being implemented without backing of any law and during the said period the interim orders were passed. The Aadhaar Act addresses the concern of this Court as reflected in the interim orders passed before enactment of the Act. 59. Shri Mehta further contended that there is presumption to the constitutionality of a statute and unless one attacking the statute satisfies the Court that the statute is unconstitutional, the presumption will be there that statute is constitutional. Shri Mehta has further submitted that there is no presumption of criminality or guilt on the requirement to link Aadhaar. 60. Elaborating the doctrine of proportionality, Additional Solicitor General submits that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Aadhaar verified bank account and is not diverted to some other account. Shell companies are often used to open bank accounts to hold unaccounted money of other entities under fictitious identities which will also be curbed once Aadhaar verification is initiated. 63. Shri Mehta further contends that impugned PMLA Rules do not violate Article 300A. Amendment Rules, 2017 also cannot be said to be ultra vires to the parent Act since it advances the object of the Act and is not ultra vires of any provision of the Act. The Amendment Rules are required to be placed before the Parliament which serve a purpose of check by the Legislature. As per Section 159 of the Act any notification Under Section 29 is to be placed before the Parliament and Parliament may amend or reject the same. The Rules, 2017 are just, fair and reasonable and in furtherance of the object of the Act and do not provide for any arbitrary, uncanalised or unbridled power. 64. Shri Rakesh Dwivedi, learned senior Counsel, appearing on behalf of UIDAI and State of Gujarat has made elaborate submissions while replying the arguments of Petitioners. The right to privacy is part of Article 21. The autonomy of individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as raising a reasonable expectation of privacy such as where juveniles in conflict with law are involved or where a rape victim's identity or medical information is involved. Thus, unless some such special context or aggravating factor is established, there would not be any reasonable expectation of privacy with respect to demographic information. 68. As regards the core biometric information, comprising finger prints and iris scans it would be pertinent to bear in mind that the Aadhaar Act is not dealing with the intimate or private sphere of the individual. The core biometrics are being collected from residents for authentication use in a public sphere and in relational context in which regard there is no reasonable expectation of privacy in relation to fingerprints and iris scans. Iris scan is nothing but a photograph of the eyes taken from a camera. From fingerprints and iris scans nothing is revealed with regard to a person. 69. Use of fingerprints with regard to registration of documents is an accepted phenomena. The use of mandatory requirement of biometric attendance is increasing day by day both in public and private sector. Thus, requirement of fingerprints and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Aadhaar number is to enable authentication which is done on a 1:1 matching basis, i.e., to say when the requesting entity feeds the Aadhaar number along with some identity information then the CIDR picks up the template having that Aadhaar number automatically and matches identity information with the encrypted information in the template. This Aadhaar number is, therefore, absolutely essential for the technological success of authentication. It is, therefore, a technology requirement and it does not amount to numerization or numericalisation. The contention of the Petitioners ignores the distinction between identity and identification. The 12 digit Aadhaar number is not given by UIDAI to alter the identity of the individual. It is provided to the enrolled individual to enable his identification through authentication. Authentication is a multi dimensional identifying process. The Aadhaar number is one element or one identifier in the process of identification through authentication. It is identificational in nature. Section 2(a) of Aadhaar Act defines Aadhaar number to mean "an identification number". Section 2(c) defines authentication as a process requiring submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneris. The use of word 'such' implies similarity with what is specifically mentioned before the general expression. The Regulations framed by UIDAI are required to be laid before the Parliament Under Section 55. Section 55 is a mandatory provision. The Parliament has power to modify the Regulation and also to reject the Regulation. This is a legislative check on the Regulation making power. 79. Almost 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 it does not reach the intended beneficiaries. A former Prime Minister said only 15 out of 100 rupees reaches the target person. This was confirmed by the Planning Commission. In the Audit Report No. 3 of 2000 CAG stated in "Overview" that programmes suffered from serious targeting problems. It noted that bogus ration cards were being used for diversions (1.93 crores bogus). 80. Even otherwise, there is no other identification document which is widely and commonly possessed by the residents of the country and most of the identity documents do not enjoy the quality of portability. They also do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation of the algorithm, Shri Dwivedi submits that foreign biometric solution providers only provide the software, the server and hardware belongs to UIDAI. So far the software is concerned UIDAI uses the software as licensee. There is no free access to the server room which is wholly secured by security guards. The enrolment data packet, after being received in the data center, is decrypted for a short duration to enable extraction of minutiae and preparation of templates. Once the template is prepared the entire biometric data is stored offline under the complete control of the UIDAI officials. 84. It is correct that the source code for the algorithms provided are retained by the BSPs which constitutes the intellectual property right of the BSP, however, it does not introduce any insecurity of data in the CIDR as the softwares operate automatically in the servers located in the server rooms and also because the software functions only on the basis of the templates whilst the biometric data is stored offline. 85. During the submissions, Shri Dwivedi also emphasised on prohibition of sharing of core biometric information. As per Section 29(1) read with Regulation 17(1) of the Aa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the data is sensitive personal data or information as defined in the IT Act, 2000. On submission of the Petitioner that there is no mechanism for raising any grievance, Shri Dwivedi submits that UIDAI has set up grievance redressal cell as contemplated Under Section 23(1)(s) of the Act. Any ANH can make a complaint for redressal of grievance. 90. The Petitioner's submission that Aadhaar Act enables the State to put the entire population of the country in an electronic leash and to track them all the time and it has converted itself as the State into a totalitarian State, it is submitted that none of the four clauses of Regulation 26 entitle the authority to store data about the purpose for which authentication is being done. Section 32(3) of the Aadhaar Act specifically prohibits the authority from collecting, storing or maintaining, whether directly or indirectly any information about the purpose of authentication. The proviso to Regulation 26 is also to the same effect. Here, "the purpose of authentication" means the nature of activity being conducted by ANH in relation to which the authentication is required and is being done. 91. It is submitted that the devices which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the smart card for identification at any time. Estonia is considered to be a pioneer and leader in the field of the use of biometrics and it has a centralized data base. 93. It is submitted that the architecture of the Aadhaar Act does not lead to any real possibility, proximate or remote of mass surveillance in real time by the State. This is not an Act for empowering surveillance by the State. It merely empowers the State to ensure proper delivery of welfare measures mandated by Directive Principles of State Policy(Part IV of the Constitution) which actually enliven the Fundamental Rights Under Article 14, 19 and 21 of the Constitution for a vast majority of the poor and down trodden in the country and thereby to bring about their comprehensive emancipation. It seeks to ensure, justice, social, economic and political for the little Indians. 94. Responding on the arguments raised by the Petitioner on Section 47 of the Act, it is submitted that Section 47 has rationale. The offences and penalties under Chapter VII are all intended to maintain the purity and integrity of CIDR which has been established of the ANH. Secondly, the entire enrolment, storage in CIDR and authentica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their respective submissions which we shall notice while considering the respective submissions hereinafter. 99. Apart from hearing elaborate submissions made by the learned Counsel for the Petitioners as well as the Respondents, we have also heard several learned Counsel for the intervener. The submission made by the intervener has already been covered by learned Counsel for the Petitioners as well as for the Respondents, hence it needs no repetition. 100. We have considered the submissions raised before us. From the pleadings on record and the submissions made following are the main issues which arise for consideration: (1) Whether requirement under Aadhaar Act to give one's demographic and biometric information is violative of fundamental right of privacy ? (2) Whether the provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar number are unconstitutional and do not pass three fold test as laid down in Puttaswamy case ? (3) Whether collection of data of residents, its storage, retention and use violates fundamental right of privacy ? (4) Whether Aadhaar Act creates an architecture for pervasive surveillance amounting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Government of India is ultra vires. (16) Whether Aadhaar Act could not have been passed as Money Bill ? Further, whether the decision of Speaker of Lok Sabha certifying the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Bill, 2016 as Money Bill is subject to judicial review ? (17) Whether Section 139-AA of the Income Tax Act, 1961 is unconstitutional in view of the Privacy judgment in Puttaswamy case? (18) Whether Aadhaar Act violates the Interim Orders passed by this Court in Writ Petition (C) No. 494 of 2012 & other connected cases? Issue Nos.1 and 2 Whether requirement under Aadhaar Act to give one's demographic and biometric information is violative of fundamental right of privacy ? And Whether the provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar number are unconstitutional and do not pass three fold test as laid down in Puttaswamy case ? 101. Before we answer the above issues we need to look into the object and purpose for which Aadhaar Act was enacted. The Statement of Objects and Reasons particularly paragraph 5 of such Statement throws light on the object for which Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history; 105. Section 3 of the Act deals with Aadhaar enrolment. Section 3 is as follows: "3.(1) Every resident shall be entitled to obtain an Aadhaar number by submitting his demographic information and biometric information by undergoing the process of enrolment: Provided that the Central Government may, from time to time, notify such other category of individuals who may be entitled to obtain an Aadhaar number. (2) The enrolling agency shall, at the time of enrolment, inform 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 to be shared during authentication; and (c) the existence of a right to access information, the procedure for making requests for such access, and details of the person or depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world." 109. Dwelling on essential nature of privacy in paragraphs 297 and 298 following has been laid down by 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 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 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 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther held that like the right to life and liberty, privacy is not absolute. Any curtailment or deprivation of that right would have to take place under a regime of law. In paragraph 313 following has been held: "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 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 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." 111. Further elaboration of the core of privacy has been stated in the following words in paragraphs 322, 323 and 326: "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 gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates demographic information which shall be collected from individuals undergoing enrolment. Regulation 4 is as follows: "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; (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 undergoing enrolment: (i) Mobile number; (ii) Email address. (3) In case of Introducer-based enrolment, the following additional information shall be collected: (i) Introducer name; (ii) Introducer's Aadhaar number. (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; (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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Motor Vehicle Rules, 1989 person making an application for driving licence is required to give name, parent, permanent address, temporary address, date of birth, place of birth, educational qualification, etc. 117. Under Special Marriage Act, name, condition, occupation, age, dwelling place, age, etc. are to be given. Thus, providing such demographic information in most of the statutes clearly indicates that those information are readily provided and no reasonable expectation of privacy has ever been claimed or perceived in above respect. 118. 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". In Court of Appeal in Regina (Wood) v. Commissioner of Police of the Metropolis, (2009) EWCA Civ 414: (2010) 1 WLR 123, following was held: "22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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." 119. The reasonable expectation of privacy test was also noticed and approved in privacy judgment, Dr. D.Y. Chandrachud, J. has referred judgment of US Supreme Court in Katz v. United States, 389 US 347 (1967), following has been observed by this Court in K.S. Puttaswamy (supra) in paragraph 185: "The majority adopted the "reasonable expectation of privacy" test as formulated by Harlan, J. in Katz and held as follows: "7. [The] inquiry, as Mr. Justice Harlan aptly noted in his Katz 66 concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy" ... whether ... the individual has shown that "he seeks to preserve [something] as private". ... The second question is whether the individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety 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. We are of the opinion that in giving of those information there is no reasonable expectation of privacy. Thus, we conclude that demographic information required to be given in the process of enrolment does not violate any right of privacy. 122. Every person born gets a name after his birth. He strives throughout his life to establish himself to be recognised by society. Recognition by fellow man and society at large is cherished dream of all human being, for fulfilling the above dream, he does not hide himself from society rather takes pride in reasserting himself time and again when occasion arises. He proclaims his identity time and again. 123. The right to identity is an essential component of an individual in her relationship with the State. The identification is only the proof of identity and everyone has right to prove his identity by an acceptable means. Aadhaar is contemplated as one PAN INDIA identity, which is acceptable proof of identity in every nook and corner of the country. 124. Reference of Internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the disclosure of gender Under Section 2 of the Aadhaar Act and Regulation 4 of the Aadhaar (Enrolment & Update) Regulations violates Article 14 of the Constitution. 126. Further, the Aadhaar Act amounts to discrimination against transgender persons Under Article 15 of the Constitution on the ground of gender. Further, it is contended that disclosure of gender identity violates Article 21 and Article 19(1) (a) of the transgender persons. 127. We having considered the provisions of the Act and Enrolment and Update Regulations and having found that disclosure of demographic information does not violate any right of privacy, the said conclusion shall also be fully applicable with regard to transgender. This Court in NALSA (supra) has held that Article 19(1)(a) which provides that all citizens shall have the right to freedom of speech and expression which includes one's right to expression and his self-identified gender, it is the right of a person to identify his gender. In paragraphs 69 and 72 of the judgment following has been laid down: "69. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the expression "person". All these expressions, which are "gender neutral" evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one's personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender." 129. This Court having recognised the right of transgenders to their self-identity in which transgenders also feel pride as human being, the mere fact that under Enrolment and Update Regulations they are required to provide demographic information regarding gender does not, in any manner, affect their right of privacy. There is no expectation of right of privacy with regard to gender. The aforesaid 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. We, thus, conclude that with regard to transgenders also no right of privacy is breache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 L Ed 2d 576. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. As the Court of Appeals for the Second Circuit stated: "Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection... the underlying identifying characteristics--the constant factor throughout both public and private communications--are open for all to see or hear. There is no basis for constructing a wall of privacy against the grand jury which does not exist in casual contacts with strangers. Hence no intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed to the grand jury that has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about 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." 133. One important observation, which has been made in the above case was that on the question whether the personal information retained by the authorities involves any of the private-life aspects, due regard has to be given to the specific context in which the information at issue has been recorded. Following was stated in paragraph 67:" "67............... However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 purpose of the law. Hence, the threefold requirement for a valid law arises out of the mutual inter-dependence 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 restraints which apply to those freedoms." 137. We, thus, have to test the provisions of Aadhaar Act in light of three-fold test as have been laid down above. The First requirement, which need 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 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, subsidie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclusive societies." 139. Learned Attorney General has also relied on Resolution of the United Nations General Assembly dated 25.09.2015 titled "Transforming our World: the 2030 Agenda for Sustainable Development". It is submitted that by the said resolution, the following goal was adopted"- "16.9 by 2030, provide legal identity for all, including birth registration." 140. In this context, judgment of U.S. Supreme Court in Otis R. Bowen, Secretary of Health and Human Services, et al. v. Stephen J. Roy et al., 476 U.S. 693 (1986) is referred where the statutory requirement that an applicant provide a social security number as a condition of eligibility for the benefits in question was held to be not violative. It was held that requirement is facially neutral in religious terms, applies to all applicants for the benefits involved, and clearly promotes a legitimate and important public interest. Chief Justice Burger writing the opinion of the Court stated: "The general governmental interests involved here buttress this conclusion. Governments today grant a broad range of benefits; inescapably at the same time the administration of complex programs requires certain conditions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arthur v. Department of Social and Health Services, 19 Wn. App. 542, 576 P.2d 921 (1978). We therefore conclude that the district court properly dismissed the Appellants' statutory invalidity allegations for failure to state a claim upon which relief could be granted." 142. Now, we come to third test, i.e., test of proportionality. D.Y. Chandrachud, J. in Puttaswamy (supra) has observed "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 purpose of the law". In Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353, Dr. Sikri, J explaining the concept of proportionality laid down following in Paragraphs 64 and 65: "64. The exercise which, therefore, 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. 65. We may unhesitating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour the constitutionality of the Act will naturally arise. 143. One of the submissions of the Petitioner to contend that proportionality test is not fulfilled in the present case is; State did not adopt an alternative and more suitable and least intrusive method of identification, i.e., smart card or other similar devices. While examining the proportionality of a Statute, it has to be kept in mind that the Statute is neither arbitrary nor of an excessive nature beyond what is required in the interest of public. The Statutory scheme, which has been brought in place has a reasonable relation to the object which the legislation seeks to achieve and the legislation does not exceed the object. The object of Aadhaar Act as noticed above 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. European Court of Justice has taken a view that the proportionality merely involves an assessment that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves none of the probing into an individual's private life and thoughts that marks an interrogation or search. 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. One of the apprehension, which was expressed by Petitioners that since as per definition of biometric information contained in Section 2(g), further, biological attributes of an individual may be specified by Regulations, which may be more intrusive. Section 2(g) use the word "such biological attributes". Thus, applying the principles of ejusdem generis, the biological attributes can be added by the Regulations, has to be akin to one those mentioned in Section 2(g), i.e. photographs, fingerprints and iris scan. In event, such biological attributes is added by Regulations, it is always open to challenge by appropriate proceedings but the mere fact that by Regulations any such biometric attributes can be added, there is no reason to accept the contention that biological attributes, which can be added may be disproportionat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security measures; (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 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. (5) Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone: Provided that an Aadhaar number holder may request the Authority to provide access to his identity information excluding his core biometric information in such manner as may be specified by Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for penalty who accesses or secures access to the Central Identities Data Repository. Section 39 provides for penalty who uses or tampers with the data in the Central Identities Data Repository. Section 40 provides for penalty whoever, being a requesting entity, uses the identity information of an individual in contravention of Sub-section (3) of Section 8. Section 41 deals with penalty for non-compliance by an enrolling agency or requesting entity. Section 42 deals with general penalty. Section 42 is as follows: "42. Whoever commits an offence under this Act or any Rules or Regulations made thereunder for which no specific penalty is provided elsewhere than this section, shall be punishable with imprisonment for a term which may extend to one year or with a fine which may extend to twenty-five thousand rupees or, in the case of a company, with a fine which may extend to one lakh rupees, or with both." 150. 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) Regulations, 2016 and (4) The Aadhaar (Sharing of Information) Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time pin-based authentication; Biometric-based authentification and Multi-factor authentification. A requesting entity may choose suitable mode of authentication for particular function or business function as per its requirement. 154. Regulation 7 provides for capturing biometric information by requesting entity which is to the following effect: "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 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. (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." 155. Regulation 9 deals with process of sending authentification requests. Sub-Regulation (1) of Regulation 9 contends the safe method of transmission of the authentication requests. 156. The Aadhaar (Data Security) Regulations, 2016 contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. 160. The Authentication Regulations, 2016 also limit the period for retention of logs by requesting entity. Regulation 18(1) which is relevant in this context is as follows: "18. Maintenance of logs by requesting entity.- (1) A 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; (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 authentication, but shall not, in any event, retain the PID information." 161. The residents' information in CIDR are also permitted to be updated as per provisions of the Aadhaar (Enrolment and 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 encryp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations as necessary Provided that the Authority shall not, in any case, store the purpose of authentication." 164. We may first notice as to what is meta data which is referred to in Regulation 26 above. The UIDAI receives the requests for authentication of ANH. The request for authentication received by requesting agency does not contain any information as to the purpose of authentication neither requesting agency nor UIDAI has any record pertaining to purpose for which authentication has been sought by Aadhaar number holder. The meta data referred to in Regulation 26(c) is only limited technical meta data. 165. Shri Kapil Sibal had submitted that CIDR holds the entire Aadhaar database retained by CIDR. It has become a soft target for internal/external/indigenous/foreign attacks and single point of failure. Shri Sibal has referred to a RBI report which states: "Thanks to Aadhaar, for the first time in the history of India, there is now a readily available single target for cyber criminals as well as India's external enemies. In a few years, attacking UIDAI data can potentially cripple Indian businesses and administration in ways that were inconceivable a few years ago. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers issued with corresponding demographic and biometric information. It is a "Protected System" notified Under Section 70 of Information Technology Act, 2000. The storage involves end to end encryption, logical partitioning, fire walling and anonymisation of decrypted biometric data. The encryption system follows a private key/public model and the private key is available only with UIDAI at the processing location. Hence even if data packets are lost or stolen the biometric information regarding the same cannot be accessed. At the CIDR there is multi-layer technological security to afford protection from hacking, and there is also deployment of armed forces to prevent unauthorised physical access into the CIDR Area. Additionally entry is electronically controlled. There are CIDR at two location already and some other locations are likely to be set up to ensure that data is not lost even in the remote eventuality of a disaster. The CIDR is centrally managed. The templates of finger prints and iris data are generated in ISO format and the same along with demographic data and photo are stored securely in the authentication server database. This database is used for authentication in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uman Rights (Strasbourg Court). The Strasbourg Court noticed that majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellur samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. 176. Strasbourg Court held that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8. It was further held that in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained. In paragraph 67 following has been laid down: "67....However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of Chief Police Officers of England, Wales and Northern Ireland and Anr. (2015) 2 WLR 664-(2015) UKSC 9. The UK Supreme Court in the above case also noticed the judgment of Strasbourg in S. and Marper v. The United Kingdom. The appeal before UK Supreme Court was concerned with the systematic collection retention by police authorities of electronic data about individuals and whether it is contrary to Article 8 of the European Convention. The Appellant before the Court had accepted that it was lawful for the police to make a record of the events in question as they occurred, but contends that the police interfered with their rights Under Article 8 of the Convention by thereafter retaining the information on a searchable database. After noticing the jurisprudence of the European Court of Human Rights Lord Sumption stated following in paragraph 33: "33. Although the jurisprudence of the European Court of Human Rights is exacting in treating the systematic storage of personal data as engaging Article 8 and requiring justification, it has consistently recognised that (subject always to proportionality) public safety and the prevention and detection of crime will justify it provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 945 (2012). Antoine Jones, owner and operator of a nightclub was under suspicion of trafficking in narcotics. A warrant was issued authorising installation of an electronic tracking device on the jeep registered in the name of John's wife. Agents installed a GPS tracking device in the jeep when it was parked in a public parking. On the basis of data obtained from the device, the Government charged Jones for several offences. In trial, Jones found a locational data obtained form the GPS device. A verdict of guilt was returned, which on appeal was reversed by United States, Appeal for District Columbia. 183. Matter was taken to the U.S. Supreme Court. Fourth Amendment provides "the right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Justice Scalia, delivering the opinion of the Court affirmed the judgment of Court of Appeal. Justice Sotomayor concurring wrote: "I join the Court's opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, "[w]here, as here, the Government obtains information by physically intruding on a constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices of Russia providers can have his or her mobile telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile telephone services." 187. The Strasbourg Court held that there had been violation of Article 8 of the Convention. The above case also does not help the Petitioners in reference to Aadhaar structure. Above case was a clear case of surveillance by interception of mobile telecommunication. 188. Another judgment relied by Shri Shyam Divan is Digital Rights Ireland Ltd. v. Minister for Communications, Marine and Natural Resources decided on 08.04.2014. Para 1 of the judgment notice: "These requests for a preliminary ruling concern the validity of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC(OJ 2006 L 105, p. 54)." 189. Directive 2006/24 laid down the obligation on the providers of publicly available electronic commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of discretion and asks whether the limitation on the Article 8 right is one which it was reasonable for the Parliament to propose: Bank Mellat v. HM Treasury (No 2) [2013] UKSC 38 : [2014] AC 700, para 75 per Lord Reed; Animal Defenders International v. United Kingdom (2013) 57 EHRR 21, para 110. Had the 2009 Act provided that the reasonable belief defence would not be available if on an earlier occasion the Accused had been charged with an offence which itself objectively entailed a warning of the illegality of consensual sexual activity with older children, the fact that there were other options, which were less intrusive, to restrict the availability of that defence would not cause an infringement of the individual's Article 8 right. The problem for the Lord Advocate in this appeal is where to find such a warning." 193. We may profitably note the judgment of Privy Council arising from a decision of Supreme Court of Mauritius-Madhewoo v. State of Mauritius. The case relates to a national identity card, which was brought in effect by an Act namely, the National Identity Card Act, 1985 providing for adult citizens of Mauritius to carry identity cards. The Act was amended in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 26 are as follows: "25. The Appellant challenges the Supreme Court's evaluation because, he submits, the creation of a reliable identity card system does not justify the interference with his fundamental rights. He submits that the obligation to provide his fingerprints interferes with his right to be presumed innocent and also that an innocuous failure to comply with Section 4(2)(c) could give rise to draconian penalties Under Section 9(3) of the Act (para 6 above). He also points out that in India a proposal for a biometric identity card was held to be unconstitutional, and, in the United Kingdom, libertarian political opposition resulted in the repeal of legislation to introduce biometric identity cards. The interference, he submits, is disproportionate. 26. In the Board's view, these challenges do not undermine the Supreme Court's assessment. First, the requirement to provide fingerprints for an identity card does not give rise to any inference of criminality as it is a requirement imposed on all adult citizens. It is true that, if circumstances arose in which a police officer was empowered to require the Appellant to produce his identity card and the govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled Rules of construction." 196. This Court also held that a project cannot be stopped merely on the ground of apprehension. In the present case, also lot of apprehensions of possibilities of insecurity of data has been raised. In India, there is no specific data protection laws like law in place in United Kingdom. In Privacy judgment-Puttaswamy (supra), this Court has noticed that Shri Krishna Commission is already examining the issue regarding data protection and as has been stated by learned Attorney General before us, after the report is received, the Government will proceed with taking steps for bringing a specific law on data protection. We need not say anything more on the above subject. After we have reserved the judgment, Srikrishna Commission has submitted its report containing a draft Personal Data Protection Bill, 2018 in July 2018. The report having been submitted, we hope that law pertaining to Personal Data Protection shall be in place very soon taking care of several apprehensions expressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to food, shelter etc. envisaged under Article 21 shall take precedence on the right to privacy of the beneficiaries? 199. Shri Pandit Jawahar Lal Nehru while concluding debate on "Aims and Objects Resolution" on 22.01.1947 in the Constituent Assembly of India stated: "The first task of this Assembly is to free India through a new constitution to feed the starving people and cloth the naked masses and to give every Indian fullest opportunity to develop himself according to his capacity. This is certainly a great task." 200. After attaining the freedom the country proceeded to realise the dream and vision which founding fathers of our democratic system envisaged. The Constitution of India apart from enumerating various Fundamental Rights including right to life has provided for Directive Principles of State Policy under Chapter IV of the Constitution which was to find objectives in governess of the country. Article 38 provided that State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. It further provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receive benefits, subsidies and services which is fundamental right and it is State's obligation to provide for fulfillment of that fundamental right. He submitted that there is no rationale in enactment of Section 7 neither there was any legitimate state interest nor the provision is proportionate. The Petitioners submit that provision of requiring every person to undergo authentication to avail benefits/services/entitlements, falls foul of Article 14. Since, firstly such mandatory authentication has caused, and continues to cause, exclusion of the most marginalised Section of society; and secondly this exclusion is not simply a question of poor implementation that can be administratively resolved, but stems from the very design of the Act. Learned Counsel for the Petitioners have referred to and relied on several materials in support of their submissions that working of Section 7 has caused exclusion. Since a large number of persons who are entitled to receive benefits, subsidies and services are unable to get it due to not being able to authenticate due to various reasons like old age, change of biometric and other reasons. The Petitioners have referred to affidavits filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of decrease in off-take of domestic subsidised cylinders of consumer and decrease in fuel prices. On Public Distribution System referring to answer to a question in Lok Sabha on 26.07.2016 it is submitted that the Minister of Consumer Affairs, Food and Public Distribution has stated only that approximately 2.33 crores ration cards were deleted during 2013-2016. 205 Learned Attorney General has referred to material on record to justify the legitimate state aim which led to enactment of Section 7. Learned Attorney General refers to Report No. 3 of 2000 of the Comptroller and Auditor General of India which has been brought on record as Annexure R-I to the common additional affidavit on behalf of Respondents. He submits that the Comptroller and Auditor General in his Report states that 1.93 crore bogus ration cards were found to be in circulation in 13 States. Report further states that a signification portion of the subsidised food-grains and other essential commodities did not reach the beneficiaries due to their diversion in the open market. The Performance Report of the Planning Commission of India titled "Performance Evaluation Report of Targeted Public Distribution System (TPDS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Various other reports have been referred to and relied by Learned Attorney General to substantiate his case that there was large leakage and pilferation of subsidies which were allocated by the Government under different schemes. 210. This Court had occasion to consider public distribution system in PUCL v. Union of India, (2011) 14 SCC 331, the Court noticed the report of High Powered Committee headed by Justice D.P. Wadhwa, retired Judge of this Court who had submitted report on the Public Distribution System. One of the actions suggested by the Committee was noticed in paragraphs 2 and 12, Component II: "2. In order to implement this system across the country, the following actions are suggested by the Committee: ......... Component II: Electronic authentication of delivery and payments at the fair price shop level. In order to ensure that each card-holder is getting his due entitlement, computerisation has to reach literally every doorstep and this could take long. Moreover, several States have already started implementing smart cards, food coupons, etc. which have not been entirely successful. Reengineering these legacy systems and replacing it with the online Aadhaar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g respective claims in the above regard. The reasons which led to enactment of Section 7 that benefits and subsidies are substantially diverted and are not able to reach have been made out even if saving were not substantial but meager. 213. The report and material which have been brought on record by the Government fully demonstrate the legitimate aim of the State in enacting Section 7. This Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors 1981 (1) SCC 608, while elaborating on right of life Under Article 21, held that the right to life includes the right to live with dignity and all that goes along with it namely the bar necessaries of life such as adequate nutrition, clothing and shelter. 214. The United Nation under Universal Declaration of Human Rights also acknowledges everyone has a right to standard of living which includes food, clothing, housing and medical care. Article 25 of the Declaration which was made in 1948 is as follows: "25.1 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights...." 219. One of the submissions which has been raised by the Petitioners targeting the Aadhaar authentication is that biometric system under the Aadhaar architecture is probabilistic. Biometric technology does not guarantee 100% accuracy and it is fallible, with inevitable false positives and false negatives that are design flaws of such a probabilistic system. We have noted above the reliance on UIDAI's Report of the year 2012 where UIDAI itself has claimed that biometric accuracy was 99.768%. The Petitioner is still criticising that since. 232% failures are there which comes to 27.65 lakh people who are excluded from benefits linked to Aadhaar. The above submission of the Petitioner ignores one aspect of the matter as has been contended by the Respondents that in case where there is biometric mis-match of a person e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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. Pitfalls and shortcomings are to remove from every system and it has been fairly submitted by the learned Attorney General as well as learned Counsel for the UIDAI that as and when difficulties in implementation and cases of denial are brought into the notice, remedial measures are taken. The Respondents are still ready to take such remedial measures to ensure that there is no denial of subsidies to deserving persons. We, however, are of the view that denial of delivery of benefits and subsidies to deserving persons is a serious concern and violation of the rights of the persons concerned. It has to be tackled at all level and the administration has to gear up itself and implementation authority has to gear up itself to ensure that rightful beneficiaries are not denied the constitutional benefits which have been recognised and which are being implemented by the different schemes of the Government. Both the Government and UIDAI are fully empowered to make Rules and Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me situations a mechanism for individual consideration will be created, a policy decision by a government that it wishes to treat all applicants alike and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants. The test applied in cases like Wisconsin v. Yoder, U.S. 205, 92 S. Ct. 1526, 32 L. Ed.2d 15 (1972), is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.17 Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine whether they are receiving duplicate benefits, no violation of this constitutional provision has been stated. Moreover, contrary to Petitioners' arguments, the discontinuance of public assistance to their entire family unit (see, 18 NYCRR 352.30)(245 A.D. 2d 637) does not infringe the constitutional rights of their children (who are not named Petitioners in light of valid legislation premising the eligibility of the children within the family unit upon the eligibility of the entire household (see, Matter of Jessup v. D'Elia, 69 N.Y. 2d 1030)." 225. Another judgment which has been relied by the Respondents is Doris McElrath v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, 615 F.2d 434. Under Social Security Act, 1935, a public assistance program of federal and state cooperation providing financial aid to needy dependent children and the parents or relatives with whom they reside, one of the conditions which was added so that as a condition of eligibility under the plan, each applicant for or recipient of aid shall furnish to the State agency his social security account number. The contention of the Appellant was noticed in paragraph 11 which is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; conduct. See, e. g., Griswold v. Connecticut,: 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.652d 510 (1965); Eisenstadt v. Baird,: 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed.2d 349 (1972). Rather, it is concerned with a condition of AFDC eligibility and the only sanction for not complying is to forego certain governmental benefits. Simply stated, the claim of the Appellants to receive welfare benefits on their own informational terms does not rise to the level of a constitutional guarantee. Moreover, the contention that disclosure of one's social security account number violates the right to privacy has been consistently rejected in other related contexts. See, e.g., Cantor v. Supreme Court of Pennsylvania, 353 F. Supp. 1307, 1321-22 (E.D. Pa. 1973); Conant v. Hill, 326 F. Supp. 25, 26 (E.D. Va. 1971)." 227. The trends of judgments as noted above do indicate that condition for identification or disclosing particular identity number for receiving a benefit from State does not violate any of the Constitutional rights. We, thus, find that Section 7 fulfills the three fold tests as laid down in Puttaswamy case. 228. Shri Gopal Subramanium relying on Article 243G and Eleventh Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist 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 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 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. In this context, reference is made to judgment of this Court in State of Uttar Pradesh and Anr. v. Zila Parishad, Ghaziabad and Anr. (2013) 11 SCC 783. In the above case, provisions of Article 243G came to be considered in reference to public distribution orders issued by the State Government in exercise of delegated powers under Essential Commodities Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw laid down by this Court in U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj 4 wherein an observation has been made that Article 243-G is an enabling provision as it enables the Panchayats to function as institutions of self-government. Further, this Court noted that such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relations to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the conditions as may be specified. Therefore, it is for the State Legislature to consider conditions and to make laws accordingly. It is also open to the State to eliminate or modify the same. 24. Therefore, it is apparent that Article 243-G read with the Eleventh Schedule is not a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and devolve powers and responsibilities to local bodies by enacting relevant laws. The local bodies can only implement the schemes entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invention or module which is invented or launched keeps on improving with time. The ready example is improvement in quality and programmes of mobile phone which has seen steep development in the last one decade. Even if authentication under Aadhaar scheme is probabilistic as on date, we have no doubt that the steps will be taken to minimise the mis-natch and to attain more accuracy in the result. In view of the foregoing discussion we are of the view that the State has given sufficient justification to uphold the constitutionality of Section 7. We, thus, answer Question Nos. 6 and 7 in the following manner: Ans. 6:Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication. Ans. 7:The State while enlivening right to food, right to shelter etc. envisaged Under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter. Issue No. 8 Whether Section 29 of the Aadhaar Act is liable to be struck down? 234. The ground to challenge Section 29 is that it permits sharing of identity information. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of sharing identity information by requesting entity with consent of the individual. When a person consents about sharing of his identity information, he cannot complain breach of Privacy Right. Petitioners take exception of provision of Sub-section (2), which permits identity information other than core biometric information to be shared in accordance with the provisions of this Act and in such manner as may be specified by the Regulations. When an Act or Regulation regulates and controls sharing of the information, the provision is regulatory and has been engrafted to protect individual's Privacy Right. The Aadhaar (Sharing of Information) Regulations, 2016 again contains in Chapter II-Restrictions on sharing of identity information. Regulation 3 is restriction on Authority. Regulation 4 is restriction on requesting entity. Regulation 5 fixes responsibility of any agency or entity other than requesting entity with respect to Aadhaar number. Regulation 6 provides restriction on sharing, circulating or publishing of Aadhaar number. 236. We, thus, conclude that the provision of Section 29 and the Sharing Regulations contains a restriction and cannot be in any manner be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 after the review by the Oversight Committee." 238. The first limb of argument of the Petitioner is 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. 239. Sub-section (1) of Section 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. The authority whose duty is to safeguard the entire data has to be heard before passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the particular case, it will however be open to the court to satisfy itself whether there were 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." 241. The International Courts have also dealt the issue. In a case, namely, Census Act(BverfGE 65, 1), judgment of Federal Constitution Court of Germany, judgment dated 11.10.2013, the Court had occasion to consider the case in the context of data processing and protection of individual information against self-incrimination and use of their personal data. Dealing with right of information and self-determination the Court held that individuals have no right in the sense of absolute, unrestricted control over their data. Following was held by the Court: "The guarantee of this right to informational self-determination" is not entirely unrestricted. Individuals have no right in the sense of absolute, unrestricted control over their data; they are after all human persons who develop wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section, "Occurrence of any public emergency" or "in the interest of public safety". In paragraph 28 following was held: "28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence 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 Apt. 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 would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action." 244. This Court issued various directions providing for certain safeguards regarding an order for Telephone-tapping. Thus, on fulfillment of statutory conditions when telephonic conversation can be intercepted no exception can be taken for disclosure of information in the interest of national security. 245. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written Dagduas but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the Accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'. (5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. (6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person Accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person Accused must have stood in the character of an Accused person at the time he made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he `right against self-incrimination' enumerated in Article 20(3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)? II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty' as understood in the context of Article 21 of the Constitution?" 250. After considering large number of cases of this Court as well as judgments rendered by Foreign Courts, a conclusion was recorded that those tests, since they are a means for imparting personal knowledge about relevant facts, hence, they come within the scope of testimonial compulsion thereby attracting the protective shield of Article 20(3). In paragraph 189 following was held: "189. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as `personal testimony', since they are a means for `imparting personal knowledge about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. In order to address such circumstances, it is important to examine some other dimensions of Article 21." 252. The nature of tests which were under consideration in the aforesaid case, were elaborately noticed by this Court and the tests were found to be in nature of substantial intrusion in the body and mind of an individual, hence, it was held that they violate Article 20(3) as well as Article 21. It is, however, relevant to notice that this Court in Selvi judgment itself has noticed the distinction in so far as use of fingerprints were concerned. This Court had noticed earlier judgment of State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 with approval. The biometric information that is fingerprints and iris scan can not be equated to the tests which came for consideration in Selvi's case. Hence, the judgment of this Court in Selvi does not in any manner support the case of the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint made by or under the authority of the Government or Bureau or by any officer empowered in this behalf by the Government or the Bureau, or any consumer or any association recognized in this behalf by the Central or State Government. 3) Section 26(1) of SEBI Act, 1992-No Court shall take cognizance of any offence punishable under this Act or any Rules or Regulations made thereunder, save on a complaint made by the Board. 4) Section 34 of Telecom Regulatory Authority of India Act, 1997-No Court shall take cognizance of any offence punishable under this Act or the Rules or Regulations made thereunder, save on a complaint made by the Authority. 5) Section 57(1) of Petroleum and Natural gas Regulatory Board Act, 2007 (sic 2006)-No Court shall take cognizance of any offence punishable under Chapter IX save on a complaint made by the Board or by any investigating agency directed by the Central Government. 6) Section 47 of Banking Regulation Act, 1949-No court shall take a cognizance of any offence punishable Under Sub-section (5) of Section 36AA or Section 46 except upon complaint in writing made by an officer of the Reserve Bank or, as the case may be, the National Bank ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 34 of Industrial Disputes Act is pari materia with Section 47 of the Aadhaar Act. This Court noticing the objective of Section 34 laid down following in the paragraph 16. The Court held that Section 34 is in the nature of limitation on the entitlement of workman or trade union or an employer to complain of offences under the Act. Following was laid down in paragraph 16: "16. At the same time, the provisions of Section 34 are in the nature of a limitation on the entitlement of a workman or a trade union or an employer to complain of offences under the said Act. They should not, in the public interest, be permitted to make frivolous, vexatious or otherwise patently untenable complaints, and to this end Section 34 requires that no complaint shall be taken cognizance of unless it is made with the authorization of the appropriate Government." 258. In so far as the submission that there is no forum for a person victim of an offence under Aadhaar Act, suffice to say that Section 47 can be invoked by the authority on its own motion or when it receives 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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. Section 46 is as follows: "46. Penalties not to interfere with other punishments.-No penalty imposed under this Act shall prevent the imposition of any other penalty or punishment under any other law for the time being in force." 262. This Court in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, had occasion to consider the provisions of Section 22 of the Mines and Minerals (Development & Regulations) Act, 1957 which provision is similar to Section 47 of the Aadhaar Act. The question arose that whether in case the complaint has not been filed by the authority Under Section 22, whether cognizance can be taken of the offence if it falls within definition of any of the offences under the Indian Penal Code. There was divergence of opinions between the different High Courts. This Court after noticing earlier judgments of this Court, laid down following in paragraphs 17 and 73. "17. Since conflicting views have been taken by the Gujarat H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 265. Attacking the provision of Section 57, Petitioners contends that broad and unlimited scope of activities covered Under Section 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. There are no procedural safeguards governing the actions of private entities and no remedy for undertaking's failure or service denial. The individual, who wish to be enrolled have given their consent only for Aadhaar subsidies, benefits and services, which cannot be assumed for other purposes. Section 57 has to be struck down on the ground of excessive delegation. "Any purpose" indicates absence of guidelines. Any purpose does not mean all purposes and several aspects of human existence. Section 57 violates all principles of proportionality. 266. Refuting the above submission of the Petitioners, the Respondents submits that, Section 57 is not an enabling provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." 269. A Two Judge Bench of this Court in Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386 elaborately considered the concept of proportionality in reference to legislative action. This Court held that ever since the principle of proportionality as noted above applied in India, Jagannadha Rao, J. had referred to judgments of Canadian Supreme Court in R v. Oakes (1986) 26 DLR 2001 and has noticed the three important components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four subcomponents of proportionality which need to be satisfied, a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (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 (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. 272. Elaborating the constitutional principles, it was laid down that the Constitution permit constitutional rights to be limited to protect public interests or the rights of others. The conflict between two fundamental aspects, i.e. 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 eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in a free and democratic society. 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." 273. The application of Doctrine of Proportionality, while examining validity of the Statute has been accepted in other countries as well. Judgments of the U.S. Supreme Court as well as of United Kingdom, Canadian Supreme Court and Australian Court shows that they have applied proportionality principle while judging a Statute. European Court of Human Rights and other international bodies have recognised the said principle. Privacy judgment in Puttaswamy case has also accepted the proportionality doctrine for judging validity of a Statute. In the three-fold test evolved in Privacy Judgment, proportionality is the third component. Dr. D.Y. Chandrachud, J. in Paragraph 310 has stated following in respect of proportionality: "310. While it intervenes to protect legitimate State interests, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uropean Court of Justice in Michael Schwarz v. Stadt Bochum in its judgment dated 17.10.2013, while considering a directive of the European Parliament and on the protection of individuals with regard to the processing of personal data and on the free movement of such data, has applied the proportionality principle. Following was laid down in Paragraph 40: "40. Fourth, the Court must establish whether the limitations placed on those rights are proportionate to the aims pursued by Regulation No. 2252/2004 and, by extension, to the objective of preventing illegal entry into the European Union. It must therefore be ascertained whether the measures implemented by that Regulation are appropriate for attaining those aims and do not go beyond what is necessary to achieve them (see Volker and Markus Schedule and Eifert, paragraph 74)." 276. Court of Justice of the European Union in Digital Rights Ireland Ltd. v. Minister for Communications [2015] QBECJ 127 had occasion to consider the validity of Parliament and Council Directive 2006/24/EC on the retention of data generated or processed by them in connection with the provision of publicly available electronic communications services or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;for a limited period' and be 'justified' by reference to one of the objectives stated in the first sentence of Article 15(1) of that directive. 96. Due regard to the principle of proportionality also derives from the Court's settled case-law to the effect that the protection of the fundamental right to respect for private life at EU level requires that derogations from and limitations on the protection of personal data should apply only in so far as is strictly necessary (judgments of 16 December 2008, Satakunnan Markkinaporssi and Satamedia, C-73/07, EU:C:2008:727, paragraph 56; of 9 November 2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, paragraph 77; the Digital Rights judgment, paragraph 52, and of 6 October 2015, Schrems, C-362/14, EU:C:2015:650, paragraph 92). 116. As regards compatibility with the principle of proportionality, national legislation governing the conditions under which the providers of electronic communications services must grant the competent national authorities access to the retained data must ensure, in accordance with what was stated in paragraphs 95 and 96 of this judgment, that such access does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We are of the view that 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. 281 After noticing the parameters of proportionality, we now need to apply proportionality and other tests to find out as to whether Section 57 satisfies the proportionality and other tests. Section 57 begins with the phrase "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 ides, which can be para phrased in following manner: (a) Nothing contained in this Act shall prevent the use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Aadhaar Act, 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 if one party is a State, cannot be said to be a law. 283. We thus, are of the view that 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. We may again clarify that 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 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 threefold test as laid down in Puttaswamy case for making provision for use of Aadhaar. 284. In view of the foregoing discussions, we held that Section 57, to the extent, which permits use of Aadhaar by the State or any body corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 dated 28.01.2009. As a result of deeming provision all the actions under the aforesaid scheme shall be deemed to have been done under the Act and not under the aforesaid notification. We may have a look on Section 59 of the Act which provides: "59. Anything done or any action taken by the Central 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. 2492(E), dated the 12th September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following words: "8.... Mr. Nambiar further contends that this notification was invalid for two reasons; it was invalid because it has been issued under the Provisions of an Act which was void as being beyond the legislative competence of the Madras Legislature, and it was void for the additional reason that before it was issued, the Constitution of India had come into force and it offended against the provisions of Article 31 of the Constitution, and so, Article 13(2) applied. Section 24 of the Act, no doubt, purported or attempted to validate this notification, but the said attempt has failed because the Act being prospective, Section 24 cannot have retrospective operation. That, in substance, is the first contention raised before us." 290. Section 24 of the 1949 Act which created a deeming fiction validating the actions taken under the earlier Act has been noticed in paragraph 11 which is to the following effect: "11. Let us then construe Section 24 and decide whether it serves to validate the impugned notification issued by the Respondent on the 21st September, 1951. Section 24 reads thus: "Orders made, decisions or directions given, notifications issued, proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument, he has relied on the decision of this Court in Deep Chand v. The State of Uttar Pradesh (1959) Supp. 2 S.C.R. 8 : (AIR 1959 SC 648)...." 293. It was held by the Constitution Bench that the Legislature can effectively exercise power of validating action taken under the law which was void for the reason that it contravened fundamental right. In paragraph 16 following has been held: "16....If a law is invalid for the reason that it has been passed by a legislature without legislative competence, and action is taken under its provisions, the said action can be validated by a subsequent law passed by the same legislature after it is clothed with the necessary legislative power. This position is not disputed. If the legislature can by retrospective legislation cure the invalidity in actions taken in pursuance of laws which were void for want of legislative competence and can validate such action by appropriate provisions, it is difficult to see why the same power cannot be equally effectively exercised by the legislature in validating actions taken under law which are void for the reason that they contravened fundamental rights. As has been pointed out by the majority decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power conferred by or under Act 31 of 1950. In paragraphs 7 and 8 of the judgment following has been laid down: "7. By Ordinance 27 of 1949 a proceeding commenced under Ordinance 12 of 1949 or anything done or action taken in the exercise of the powers conferred under that Ordinance was to be deemed a proceeding commenced, thing done and action taken under the former Ordinance as if that Ordinance were in force on the date on which the proceeding was commenced, thing was done or action was taken. Section 58(3) of Act 31 of 1950 contained a similar deeming provision that anything done or action taken in exercise of the power conferred under Ordinance 27 of 1949 is to be deemed to have been done or taken in exercise of the power conferred by or under Act 31 of 1950, as if the Act were in force on the day on which such thing was done or action was taken. 8. By this chain of fictions, things done and actions taken under Ordinance 12 of 1949 are to be deemed to have been done or taken in exercise of the powers conferred under Act 31 of 1950, as if that Act we re in force on the day on which such thing was done or action taken. The order passed by the Deputy Custodian Under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey operate on conditions already existing. However, the scope of the validating act may vary from case to case." 300. The argument that an action or provision hit by Article 14 can never be validated was specifically rejected by this Court in The State of Mysore and Anr. v. d. Achiah Chetty, Etc., (1969) 1 SCC 248, in paragraph 15 following has been held: "15. Mr. S.T. Desai, however, contends that an acquisition hit by Article 14 or anything done previously cannot ever be validated, unless the vice of unreasonable classification is removed and the Validating Act is ineffective for that reason. This argument leads to the logical conclusion that a discrimination arising from selection of one law for action rather than the other, when two procedures are available, can never be righted by removing retrospectively one of the competing laws from the field. This is a wrong assumption...." 301. A statute creates a legal fiction to achieve a legislative purpose. We may refer to the celebrated judgment of Lord Asquith in East End Dwelling Co. Ltd. And Finsury Borough Council, 1952 AC 109, following is the enunciation of Lord Asquith: "If you are bidden to treat an imaginary state of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , speaking for the Court in paragraphs 72 to 74: "72. The second limb of submission of Mr. Rohatgi as regards the maintainability pertains to the language employed Under Section 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. 73. Relying on Section 6(2), which was introduced by way of Amendment Act 2002 (Act No. 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 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 possibility such an amendment to the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th Edition by G.P. Singh. The learned author has expressed thus: "In interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created 1, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not be extended beyond the purpose for which is created, or beyond the language of the Section by which it is created 4. It cannot also be extended by importing another fiction 5. The principles stated above are 'well-settled'. A legal fiction may also be interpreted narrowly to make the statute workable. 76. In Aneeta Hada v. Godfather Travels and Tours, (2012) 5 SCC 661, a three-Judge Bench has ruled thus: "37. In State of T.N. v. Arooran Sugars Ltd., (1997) 1 SCC 326 the Constitution Bench, while dealing with the deeming provision in a statute, 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 AIR 1961 SC 838, J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no consent or informed consent obtained from individuals for enrolment made consequent to notification dated 28.01.2009, the notification dated 28.01.2009 and the scheme thereafter does not clearly indicate that the enrolment for Aadhaar was voluntary. This Court has issued an interim order directing the enrolment be treated as voluntary, hence, it cannot be accepted that those got enrolled after 28.01.2009 did not give consent. The individual provided demographic information and gave biometric information and also signed the enrolment form. The residents after the enrolment were required to confirm that information contained were provided by them and are of his own true and correct. On sign slip, he was required to sign or put his thumb impression themselves. It is on the record that more than 100 crores enrolment were completed prior to enforcement of Aadhaar Act 2016. On the basis of Aadhaar Act large number of persons must have received benefits of subsidies and services, thus, the enrolments prior to enforcement of Act, 2016 cannot be declared illegal and void. In view of the aforementioned discussion, we answer the Issue No. 12 in the following manner; Ans. 12: Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted above that for Aadhaar enrolment, for verification of information consent is obtained from the person submitting for 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 consent of their parents or guardian because they themselves are unable to give any valid consent for enrolment. We, thus, have to read parental consent 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. We thus answer Question No. 13 in following manner: Ans. 13: Parental consent for providing biometric information Under Regulation 3 & demographic information Under Regulation 4 has to be read for enrolment of children between 5 to 18 years to upheld the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016. Issue No.14 Whether Rule 9 as amended by the Prevention of Money-Laundering (Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importance of strengthening international, regional and subregional cooperation, and recommend that States that have not yet done so adopt by the year 2003 national money-laundering legislation and programmes in accordance with relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, as well as the measures for countering money-laundering, adopted at the present session; ............ "COUNTERING MONEY-LAUNDERING" The General Assembly, ... ......... Emphasizing the enormous efforts of a number of States to draw up and apply domestic legislation that identifies the activity of money-laundering as a criminal offence, Realizing the importance of progress being made by all States in conforming to the relevant recommendations and the need for States to participate actively in international and regional initiatives designed to promote and strengthen the implementation of effective measures against money-laundering, 1. Strongly condemns the laundering of money derived from illicit drug trafficking and other serious crimes, as well as the use of the financial systems of States for that purpose; 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or their financial well being but for the financial system and working of economic, road blocks are felt both by the nations and human organisations. 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. At some stage money-laundering involves conversion process with the objective to give the appearance that the money has a legitimate source. The banking and financial secrecy is another bottleneck for countries who genuinely want to counter money-laundering. It is inherent in the activity of money-laundering to keep the entire process secret. The Parliament with the objectives outlined in the international declaration enacted the PMLA Act. Para 1 of the Statement of Objects and Reasons of Act is stated as follows: "STATEMENT OF OBJECTS AND REASONS It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recommendations of the Standing Committee were accepted by the Central Government and made provisions of the said recommendations in the Bill. Thereafter, the Bill was presented in the Parliament which after receiving the assent of the President published in the Gazette on 01.07.2005. Act, 2002 has been amended by various Parliamentary Acts. By amendments made in the year 2013 by Act 2 of 2013, the Legislature has attempted to keep the pace with the other countries of the world by making more stringent provision to prevent money-laundering which is the root as well as the result of the black money economy. Money-laundering is defined Under Section 3 which is to the following effect: "3. Offence of money-Laundering.-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering." 313. Section 2 (ha) defines client and Section 2(wa) defines reporting entity which are as follows; "2. (ha) "client" means a person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 the small account, certifies under his signature that the person opening the account has affixed his signature or thump 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 possible to manually monitor and ensure that foreign remittances are not credited to a small account and that the stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 of the following documents: (i) registration certificate; (ii) partnership deed; and (iii) (a) Aadhaar number; and (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 Account Number is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted." (c) after Sub-rule (14), the following sub-rules shall be inserted, 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. (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 Maghalaya 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 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) 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that Second Amendment Rules violate Article 14 and 21 since persons choosing not to enrol for Aadhaar number cannot operate bank account and valid explanation has to be given as to why all banks have to be authenticated. 318. Violative of Article 19(1)(g) because the Rules refer to companies, firms, trusts, etc. whereas Aadhaar Act is only to establish identity of individuals. Violative of Article 300A since even temporary deprivation can only be done by primary legislation. The Second Amendment Rules do not pass proportionality test. No proper purpose has been established. No explanation has been given that the measures undertaken to such are rationale and connected to the fulfillment of the purpose and there are no alternative measures with a lesser degree of legislation. When the banks have already verified all accounts as per e-KYC norms, it is completely arbitrary to make permanent linking/seeding of all Aadhaar numbers with the bank accounts. Second Amendment Rules fail to satisfy the proportionality test, are irrational, and manifestly arbitrary. 319. Shri Tushar Mehta, learned Additional Solicitor General refuting the submission, submits that Second Amendment Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplain his dis-entitlement of operating his account. The submission of the Petitioner that there is no valid explanation as to why all bank accounts have to be authenticated also cannot be accepted. Aadhaar provides a mechanism truly identifies an account holder, which eliminates fraudulent accounts existed of non-existed persons and in ghost names. 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. It is relevant to notice that 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 for once is not any cumbersome or undue burden on an account holder. The object of the Second Amendment Rules is towards the legitimate aim of the State and having nexus with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an individual. As noted above 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. 321 One of the submissions which has been made by the Petitioner also is that Rules violate Article 19(1)(g). It is submitted that Rule refers to companies, firms, trusts etc. whereas Aadhaar Act is only to establish identity of individual. For example Sub-rule (6) of Rule 9 as amended by Second Amendment Rules, 2017 provides that where client is a company, it shall for the purposes of Sub-rule (1), submit to the reporting entity the certified copies of the documents enumerated therein. Rule requiring Aadhaar number and PAN or Form 60 as defined in Income Tax Rules, 1962, issued to managers, officers or employees holding an attorney to transact on the company's behalf, is for the purpose to find out the beneficial owner behind the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them." (emphasis added) 323. The principles of proportionality as noticed in the aforesaid judgment are substantially same which had been laid down in Puttaswamy case and Modern Dental (supra) only one difference in the above two judgments is that although both the judgments noticed the least intrusive test but in ultimate conclusion the said test was not reflected in the ratio of the above two judgments. 324. In the foregoing discussions, we come to the conclusion that Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4 of the Indian Telegraph Act, 1885. 327. We need to scrutinise the circular dated 23.03.2017 on the ground of attack alleged by the Petitioners and justification as offered by the Respondents. Circular dated 23.03.2017 has been addressed by the Ministry of Communications, Department of 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. Para 1 to 3 of the circular may be noticed, which are to the following effect: "Hon'ble Supreme Court, in its order dated 06.02.2017 passed in Writ Petition (C) No. 607/2016 filed by Lokniti Foundation v. Union of India, while taking into cognizance of "Aadhaar based E-KYC process for issuing new telephone connection" issued by 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 today, a similar verification will be completed, in case of existing subscribers." This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as noted above indicate that circular has been issued for implementation of orders of Supreme Court regarding 100% E-KYC based re-verification of existing subscribers. It is necessary to notice the judgment of this Court dated 06.02.2017, a reference to which is made in the circular itself. The order dated 06.02.2017 was issued by this Court in a Writ Petition filed by Lokniti Foundation v. Union of India and Anr. (2017) 7 SCC 155. The Petitioners have filed a writ petition with a prayer that identity of each subscriber and also the members should be verified so that unidentified and unverified subscribers cannot misuse mobile phone. After issuing the notice, Union of India had filed a counter affidavit, where Union of India stated that Department has launched Aadhaar based E-KYC for issuing mobile connections on 16.8.2016. 331. Paras 2 to 6 of the judgment, which is relevant for the present purpose are as follows: "2. Consequent upon notice being issued to the Union of India, a short counter affidavit has been filed on its behalf, wherein, it is averred as under: "22. That however, the department has launched 'Aadhaar based E-KYC for issuing mobile connections' on 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, that an effective programme for the same, would be devised at the earliest, and the process of identity verification will be completed within one year, as far as possible. 5. In view of the factual position brought to our notice during the course of hearing, we are satisfied, that the prayers made in the writ petition have been substantially dealt with, and 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 today, a similar verification will be completed, in the case of existing subscribers. While complimenting the Petitioner for filing the instant petition, we dispose of the same with the hope and expectation, that the undertaking given to this Court, will be taken seriously, and will be given effect to, as soon as possible. 6. The instant petition is disposed of, in the above terms." 332. Para 5 of the judgment contains the operative portion of the order, which states "we dispose of the same with the hope and expectation, that the undertaking given to this Court, will be taken seriously, and will be given effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Rakesh Dwivedi, learned Counsel appearing for the Respondents has submitted that the Central Government being licensor, it is fully entitled to provide for any condition in its license, which condition becomes binding on the licensee. Referring to license agreement for Unified Licensees, Shri Dwivedi submits that one of the conditions in the agreement was Condition No. 16.1 which is to the following effect: "16.1 The Licensee shall be bound by the terms and conditions of this License Agreement as well as instructions as are issued by the Licensor and by such orders/directions/Regulations of TRAI as per provisions of the TRAI Act, 1997 as amended from time to time." 339. Shri Dwivedi has also relied on a number of judgments in support of his submissions that conditions can be validly laid down. he has relied on Bagalkot Cement Co. Ltd. v. R.K. Pathan and Ors. AIR 1963 SC 439, where this Court while considering the Industrial Employment (Standing Orders) Act, 1946 observed that object of the Act was to require the employers to make the conditions of employment precise and definite and the Act ultimately intended to prescribe these conditions in the form of Standing Orders so th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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 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. 343. There is one more aspect of the matter, which needs to be looked into. Aadhaar Act has only two provisions under which Aadhaar can be used, i.e. Section 7 and Section 57. Present is not a case of Section 7 since present is not a case of receiving any subsidy, benefit or service. What Section 57 contemplate is that "use of Aadhaar can be provided by a law". Words "by a law" used in Section 57 obviously mean a valid law framed by competent legislation and other than the Aadhaar Act. No law has been framed by permitting use of Aadhaar for verification of sim of existing subscribers. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certification of Bill as Money Bill is matter of Parliamentary procedure hence Article 122 also save the said decision from being questioned in a Court of Law. 347. Article 110 and Article 122, which falls for consideration in the present case are as follows: "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 of the following matters, namely: (a) the imposition, abolition, remission, alteration or Regulation of 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; (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; (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; (f) the receipt of money on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Judicial Review in reference to Parliamentary proceedings. A similar Constitutional provision giving finality to the decision of the Speaker is contained in Para 6 of Tenth Schedule where a question whether a person has become disqualified or not is to be referred to the decision of the Chairman or the Speaker and his decision shall be final. Para 6 sub-clause(1) is quoted as below: "6. Decision on questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final." 350. The Constitution Bench had occasion to consider Para 6 in Kihoto Hollohan v. Zachillhu and Ors. Supp. (2) SCC 651, Justice M.N. Venkatachaliah, as he then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erriding powers which this Court can exercise in the matter of granting special leave Under Article 136 of the Constitution. 81. Again, in Union of India v. Jyoti Prakash Mitter [1971] 3 SCR 483 a similar finality Clause in Article 217(3) of the Constitution camp up for consideration. This Court said: (SCC pp. 410-1, Para 32) ...The President acting Under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the Rules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence." 82. Referring to the expression "final" occurring in Article 311(3) of the Constitution this Court in Union of India v. Tulsiram Patel, [1985] Supp. 2 SCR 131 held: (SCC p. 507. Para 138) ...The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Special Reference No. 1 of 1964 MAIR 1965 SC 745 where this Court had occasion to consider Article 212, which is a provision relating to the legislature of the State pari materia to Article 122. Constitution Bench has held that what is protected Under Article 212 from being questioned is on the ground of any alleged irregularity or procedure. The said ground does not apply in case of illegality of the decision. The next case, which needs to be considered is again a Constitution Bench judgment of this Court in Raja Rampal v. Hon'ble Speaker, Lok Sabha and Ors. (2007) 3 SCC 184. The Constitution Bench in the above case had occasion to consider the question of issue of Judicial Review of a decision of Speaker disqualifying from membership of the Parliament. A submission was raised before the Court by virtue of Article 122 of the Constitution, which puts an embargo on questioning any proceeding of the Parliament, the decision of the Speaker is immuned from the Judicial Review. The above submission has been noticed in Para 364 of the judgment in following words: "364. The submissions of the learned Counsel for the Union of India and the learned Additional Solicitor Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. (Emphasis supplied) 384. The prohibition contained in Article 122(1) does not provide immunity in cases of illegalities. In this context, reference may also be made to Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506. The case mainly pertained to Article 124(4) read with the Judges (Inquiry) Act, 1968. While dealing, inter alia, with the overriding effect of the Rules made Under Article 124(5) over the Rules made Under Article 118, this Court at pp. 187-88 made the following observations: (SCC p. 572, para 94) "94. We have already indicated the constitutional scheme in India and the true import of clauses(4) and (5) of Article 124 read with the law enacted Under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969, which, inter alia contemplate the provision for an opportunity to the Judge concerned to show cause against the finding of 'guilty' in the report before Parliament takes it up for consideration along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is in recognition of the principles that Parliament has privilege regarding procedure and any challenge on the ground of violation of any procedure is not permissible. 354. Shri K.K. Venugopal relied on Two Judgments of this Court in support of his submission namely, Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Anr. (2014) 11 SCC 415 and Yogendra Kumar Jaiswal and Ors. v. State of Bihar and Ors. (2016) 3 SCC 183. He submits that in both the decisions, this Court while dealing with the question of challenge to Money Bill has clearly held that the decision of Speaker certifying a Bill as Money Bill is final and cannot be questioned. 355. We need to consider the above decisions in detail. Mohd. Saeed Siddiqui (supra) was a judgment delivered by a Three Judge Bench of this Court. U.P. Lokayukta Act and U.P. Lokayukta (Amendment) Act, 2012 was subject matter of challenge. One of the submissions in that regard has been noted in Para 12, which is to the following effect: "12. It was further submitted by Mr. Venugopal that the Amendment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given by the President or the Governor, as the case may be. 37. In M.S.M. Sharma v. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589, the Constitution Benches of this Court held that: (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the legislature of a State cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of any alleged irregularity of procedure. 40. The learned Counsel for the Appellants has drawn inspiration from a passage from Powers, Privileges and Immunities of State Legislatures. In re, Special Reference No. 1 of 1964 AIR 1965 SC 745, wherein it has been held that Article 212(1) lays down that the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure and Article 212(2) confers immunity on the officers and members of the legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. The Court opined that Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. 42. In this regard, we may profitably refer to the authority in 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 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 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 (supra) wherein it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the case of joint sitting of both houses. In event, we accept the submission of learned Attorney General that certification by Speaker is only a matter of procedure and cannot be questioned by virtue of Article 122(1), any Bill, which does not fulfill the essential constitutional condition Under Article 110 can be certified as Money Bill bye-passing the Upper House. There is a clear difference between the subject "irregularity of procedure" and "substantive illegality". When a Bill does not fulfill the essential constitutional condition Under Article 110(1), the said requirement cannot be said to be evaporated only on certification by Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, Court will be permitting constitutional provisions to be ignored and bye-passed. We, thus, are of the view that decision of Speaker certifying the Bill as Money Bill is not only a matter of procedure and in event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to Judicial Review. We are, therefore, of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 Article 110(1)(c) and (e). 362. Shri P. Chidambaram, learned Counsel for Petitioners has laid much emphasis on the word "only" as occurring in Article 110(1). The word "only" used in Article 110(1) has purpose and meaning. The legislative intendment was that main and substantive provisions should be only any or all of the clauses from (a) to (f). In event, the main and substantive provision of the Act are not covered by Clauses (a) to (f), the said Bill cannot be said to be a Money Bill. It will not be out of place to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional obligation to provide for subsidies, benefits and services to the individuals, who are entitled for such subsidies, benefits and services. Section 24 contemplates the appropriation made by Parliament by law for grant of sums of money for the purposes of Aadhaar Act. The disbursement of subsidies, benefits and services from the Consolidated Fund of India is in substance, the main object of the Act for which Aadhaar architecture has been envisaged and other provisions are only to give effect to the above main theme of the Act. Other provisions of the Act are only incidental provisions to main provision. Section 57 on which much attack has been made by the learned Counsel for the Petitioners that it cannot be covered by any of the provisions from (a) to (f) of Article 110(1). Suffice it to say that Section 57 is a provision which clarifies that nothing contained in Aadhaar 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 to any law, for the time being in force, or any contract to this effect. The applicability of the provision of Section 57 comes into play w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (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 cost." 366. As per the above judgment, the validity of the provisions of Section-139AA was upheld subject to passing the muster of Article 21 of the Constitution, which was the issue pending before the Constitution Bench in Writ Petition (C) No. 494 of 2012 and other connected matters. The Constitution Bench judgment in Puttaswamy was delivered on 24.08.2017. Right of Privacy has been held to be fundamental right, any restriction on such fundamental right has been held to be valid when it passes the muster of three-fold test as laid down there. In the lead judgment of Dr. Justice D.Y. Chandrachud, three-fold test are: (a) The existence of law; (b) A legitimate State interest and (c) such law should pass the test of proportionality. 367. Dr. Justice Chandrachud has delivered the judgment for himself and three other Hon'ble Judges, Justice Sanjay Kishan Kaul in paragraph 639 has upheld the test of proportionality. As a result, at-least five out of nine Judges requires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fant mortality, child 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 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 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Aadhaar movement and encourage the people of this country to enrol themselves under the Aadhaar Scheme. 370. In Paragraphs 122 to 125 of Binoy Viswam, it has also been observed that the measures taken may go a long way to check and minimise the malaise of black money. 371. Dr. Justice D.Y. Chandrachud in Puttaswamy case in Paragraph 311 has stated: "311. ......... 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 - legitimately deployed is a powerful enabler in the spread of innovation and knowledge." 372. In Puttaswamy case, Justice Sanjay Kishan Kaul has noted the European Union General Data Protection Regulation and observed that restrictions on the right to privacy may be justifiable on the ground of Regulation of taxes and fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The fact that the tax base of India is very narrow and that we are a largely tax non-compliant society is evident from some of the startling figures in the budget speech of the Finance Minister. Linking of PAN with Aadhaar will at least 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. 375. The Binoy Viswam has referred to other relevant rationals for enactment of Section 139-AA. Section 139-AA also cannot be said to be disproportionate. The Section has been enacted to achieve the legitimate State aim. Section 139-AA is a law framed by Parliament, which require linking of the Aadhaar with PAN. The means which are sought to be achieved by such enactment cannot be said to be disproportionate in any manner. It has been further submitted that Section 139-AA unfairly attracts only individual Assessees and not other tax paying Assessees, who may also be involved in fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aswamy's case. Section 139-AA, thus does not breach fundamental Right of Privacy of an individual and Section 139-AA cannot be struck down on that ground. Ans. 17: Section 139-AA does not breach fundamental Right of Privacy as per Privacy judgment in Puttaswamy case. Issue No. 18 Whether Aadhaar Act violates the Interim Orders passed by this Courtin Writ Petition (C) No. 494 of2012? 378. The Petitioners submits that this Court has passed various Interim Orders in Writ Petition (C) No. 494 of 2012 from 23.09.2013 to 15.10.2015. On 23.09.2013, this Court directed "In the meanwhile, no person should suffer not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to 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". 379. On 11.08.2015, this Court issued following order:" "Having considered the matter, we are of the view that the balance of interest would be best served, till the matter is finally decided by a larger Bench if the Union of India or the UIDA proceed in the following manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 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 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, 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 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to give one's demographic and biometric information does not violate fundamental right of privacy. (2) The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass three-fold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional. (3) Collection of data, its storage and use does not violate fundamental Right of Privacy. (4) Aadhaar Act does not create an architecture for pervasive surveillance. (5) Aadhaar Act and Regulations provides protection and safety of the data received from individuals. (6) Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication. (7) The State while enlivening right to food, right to shelter etc. envisaged Under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter. (8) Provisions of Section 29 is constitutional and does not deserves to be struck down. (9) Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Class dated 22.10.2013 by which Judicial Magistrate First Class directed DG, UIDAI and Dy. Dg. UIDAI Technology Centre, Bangalore to provide the necessary data to the Respondent C.B.I. The said order was challenged in the High Court by means of Criminal Writ Petition, in which the order was passed by the High Court on 26.02.2014 giving rise to S.L.P. (Crl.) No. 2524 of 2014. 390. We have noticed above that according to Aadhaar Act Section 33 disclosure of information can be made as per Sub-section (1) pursuant to an order of Court, not inferior to that of District Judge. The order directing for disclosure of information having been passed by Judicial Magistrate First Class, in the present case, the order is not in consonance with Sub-section (1) of Section 33, hence the order passed by Judicial Magistrate, First Class dated 22.10.2013 and order of the High Court passed in reference to the said order deserves to be set aside. Criminal Appeal is allowed accordingly. 391. No case is made out to initiate any contempt proceedings in the contempt applications as prayed for. All the contempt petitions are dismissed. 392. In result, this batch of cases is decided in following manner: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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