2018 (9) TMI 1733 - SC - Indian Laws

Aadhaar Card - right of Privacy - the main plank of challenge of petitioners is that the Aadhaar project and the Aadhaar Act infringes right to privacy - Held that - The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not create a surveillance state. This is ensured by the manner in which the Aadhaar project operates. During the enrollment process, minimal biometric data in the form of iris and fingerprints is collected. The Authority does not collect purpose, location or details of transaction. Thus, it is purpose blind. There are sufficient security measures as well - it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR. Aadhaar is thus held to be valid.

Issues Involved:
1. Violation of Fundamental Right to Privacy
2. Constitutionality of Aadhaar Act's Provisions
3. Collection, Storage, Retention, Use, Sharing, and Surveillance of Data
4. Exclusion from Benefits and Services
5. Protection and Safety of Data
6. Constitutionality of Section 7 of Aadhaar Act
7. Balancing Right to Food, Shelter, etc., with Right to Privacy
8. Sharing of Identity Information under Section 29
9. Use of Aadhaar Data for Police Investigation under Section 33
10. Right to Initiate Criminal Process under Section 47
11. Use of Aadhaar by Private Entities under Section 57
12. Validation of Actions prior to Aadhaar Act under Section 59
13. Collection of Data from Children
14. Constitutionality of PMLA (Second Amendment) Rules, 2017
15. Legality of Circular dated 23.03.2017 by Department of Telecommunications
16. Aadhaar Act as a Money Bill and Speaker's Certification
17. Constitutionality of Section 139-AA of the Income Tax Act, 1961
18. Compliance with Interim Orders by the Supreme Court

Detailed Analysis:

1. Violation of Fundamental Right to Privacy:
The requirement under the Aadhaar Act to provide demographic and biometric information does not violate the fundamental right to privacy. The provisions requiring such information pass the three-fold test laid down in the Puttaswamy case, which includes legality, necessity, and proportionality.

2. Constitutionality of Aadhaar Act's Provisions:
The Aadhaar Act's provisions requiring demographic and biometric information are constitutional. The Act ensures that the collection, storage, and use of data do not violate the fundamental right to privacy.

3. Collection, Storage, Retention, Use, Sharing, and Surveillance of Data:
The collection, storage, and use of data under the Aadhaar Act do not violate the fundamental right to privacy. The Act does not create an architecture for pervasive surveillance. Adequate protection and safety measures for the data are provided under the Act and its regulations.

4. Exclusion from Benefits and Services:
Section 7 of the Aadhaar Act is constitutional. The provision does not deserve to be struck down due to denial in some cases of the right to claim benefits or services on account of authentication failure. The State cannot encroach upon the right to privacy of beneficiaries while ensuring the right to food, shelter, etc., under Article 21.

5. Protection and Safety of Data:
The Aadhaar Act and its regulations provide adequate protection and safety measures for the data collected from individuals.

6. Constitutionality of Section 7 of Aadhaar Act:
Section 7 of the Aadhaar Act, which requires authentication for receipt of subsidies, benefits, or services, is constitutional. The provision does not violate Articles 14 and 21 of the Constitution.

7. Balancing Right to Food, Shelter, etc., with Right to Privacy:
The State cannot give precedence to the right to food, shelter, etc., over the right to privacy of beneficiaries. Both rights must be balanced, and the Aadhaar Act ensures this balance.

8. Sharing of Identity Information under Section 29:
Section 29 of the Aadhaar Act, which restricts the sharing of identity information, is constitutional. The provision ensures that identity information is shared only in accordance with the Act and its regulations.

9. Use of Aadhaar Data for Police Investigation under Section 33:
Section 33 of the Aadhaar Act, which allows the use of Aadhaar data for police investigation, is constitutional. The provision does not violate the protection against self-incrimination under Article 20(3) of the Constitution.

10. Right to Initiate Criminal Process under Section 47:
Section 47 of the Aadhaar Act, which restricts the initiation of criminal processes to the authority or its authorized officers, is constitutional. The provision ensures that only the authority can handle the vast and sensitive data involved.

11. Use of Aadhaar by Private Entities under Section 57:
Section 57 of the Aadhaar Act, which allows the use of Aadhaar by private entities, is unconstitutional to the extent that it permits use based on any contract. The provision is struck down for allowing unrestricted extension of Aadhaar information.

12. Validation of Actions prior to Aadhaar Act under Section 59:
Section 59 of the Aadhaar Act validates all actions taken by the Central Government under the notifications dated 28.01.2009 and 12.09.2015. These actions are deemed to have been taken under the Aadhaar Act.

13. Collection of Data from Children:
Parental consent for providing biometric and demographic information is required for the enrolment of children between 5 to 18 years. This ensures the constitutionality of the enrolment process for minors.

14. Constitutionality of PMLA (Second Amendment) Rules, 2017:
Rule 9 as amended by the PMLA (Second Amendment) Rules, 2017 is constitutional. The rule does not violate Articles 14, 19(1)(g), 21, and 300A of the Constitution or Sections 3, 7, and 51 of the Aadhaar Act.

15. Legality of Circular dated 23.03.2017 by Department of Telecommunications:
The circular dated 23.03.2017, which mandates the linking of mobile numbers with Aadhaar, is unconstitutional. The circular is set aside as it is not backed by any law and violates the right to privacy.

16. Aadhaar Act as a Money Bill and Speaker's Certification:
The Aadhaar Act has been rightly passed as a Money Bill. The decision of the Speaker certifying the Aadhaar Bill as a Money Bill is not immune from judicial review.

17. Constitutionality of Section 139-AA of the Income Tax Act, 1961:
Section 139-AA, which mandates linking Aadhaar with PAN, does not breach the fundamental right to privacy. The provision is compliant with the three-fold test laid down in the Puttaswamy case.

18. Compliance with Interim Orders by the Supreme Court:
The Aadhaar Act does not violate the interim orders passed by the Supreme Court in Writ Petition (C) No. 494 of 2012 and other writ petitions. The Act provides legislative backing to the Aadhaar Scheme, which was previously implemented through executive orders.

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