Thursday, 12 November 2015

The Aadhar case

JUSTICE K.S. PUTTASWAMY (Retd.) & ANR. V/S UNION OF INDIA & ORS., ORDER DATED 11.08.2015

SUBJECT - CONSTITUTIONAL LAW
Aadhaar Card or Unique Identification Number (UID) is a 12 digit identification code issued to the citizens of India on behalf on the Government of India. The card and the identification number on it is the proof of the identity and address of the individual it has been issues to anywhere in the country. Once a person, who is a resident of India, satisfies the verification process as laid down by the Unique Identification Authority of India or UIDAI, the card is granted. However the process of verification and application for the Aadhaar Card involves biometric data capture which includes capturing a digital print of facial image, the iris of the applicant and fingerprints. A writ petition was filed by Justice (Retd.) K.S. Puttaswamy before the Hon’ble Supreme Court to decide whether this capture and record of personal data recorded by the UIDAI in the biometric examination amounts to violation of the right to privacy.
Brief Facts
1.        Justice (Retd.) Puttaswamy (“Petition”) has challenged the Aadhar Card Scheme on various grounds. One of his main contentions is that the collection of biometric data of the said Scheme violates the “right to privacy”. At the time of application of the Aadhaar Card, an applicant has to provide his biometric data. The Petitioner provides that this is a violation of Article 21 of the Constitution of India which grants “right to Privacy” as a fundamental right through various decisions of the Apex Court.

2.        Mr. Mukul Rohatgi, Attorney General of India, who appeared on behalf of one Respondent, before the three judge Bench of the Hon’ble Supreme Court brought two case laws on the subject to the attention of the Court; M.P. Sharma & Ors. V. Satish Chandra & Ors.[1] And Kharak Singh v. State of U.P. & Ors,[2] an eight and six judge Bench decision of the Court, respectively. In both of these cases, the Supreme Court has been doubtful about the position of “right to privacy” as a fundamental right. Further Mr. K.K. Venugopal, appearing on behalf of another Respondent, pointed out that the decisions of the apex court relied upon by the Petitioner have been made by a bench of two or three judges. Thus, due to this divergence in opinion, the Attorney General and Mr. Venugopal requested the Hon’ble Court to settle the legal position of the matter by placing it to be heard before a larger Bench of the Hon’ble Supreme Court.

3.        This larger Bench of the Supreme Court will have to determine whether the Constitution guarantees “right to privacy” as a fundamental right under Article 21 and decide the nature as well as scope of such a right.

Issue for Consideration
The main issues for consideration were:-
1.        Whether “right to privacy” is guaranteed in the Part III of Constitution of India/
2.        Whether the present matter, owing to the precedents of the Court, be heard by a larger Bench?

Decision of the Court
1.             The Supreme Court recognized that the present case raises questions of far reaching importance involving interpretation of the Constitution of the precious and inalienable right to liberty under Article 21.

2.             The Court was of the opinion that keeping in mind the institutional integrity and judicial disciple required, the matter needs to be referred to a larger Bench of the Court owing to the apparent unresolved contradiction in the law declared by the Court.

3.             In its interim order dated 11th August, 2015, the Court was of the opinion that keeping in view the possibility of commercial exploitation of biometric information of individuals and at the same time considering the benefits  ensured by the Aadhaar Scheme in several social benefit schemes of the Government like MGNREGA, PDS system and distribution of LPG, restraining the respondents in issuing further Aadhaar cards will not be necessary. The Court said that the balance of interest will be best served by a larger bench, however the following directions were issued to the UIDAI:
·                “The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
·                The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;
·                The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;
·                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.”

The matter has been referred to be heard by a larger Bench of the Hon’ble Supreme Court


[1] AIR 1954 SC 300
[2] AIR 1963 SC 1295

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