10 SCC 1 2017/ SCC Online SC 996

FACTS

The Aadhar scheme, which was conceptualized in the year 2006 and set in motion in 2009, seeks to maintain a unique identity for each and every person as the notification was rolled out by the name UIDAI by the planning commission of India in January 2009. Aadhar means ‘foundation or base.’ Initiated by the government of India, a high-level committee was set up, empowered with the responsibility to create a unique database for a project known as ‘Unique Identification for BPL families.’ The authority to issue such Aadhar cards for vested with the Unique Identification Authority of India or UIDAI. UIDAI claimed that Aadhar is not only a reliable means of identifying a person but also a single documentation for availing various government benefits and for entering into any transaction without providing any further documentation. The parliament passed the National Identification Authority of India bill in 2010, which was proposed by the Planning Commission as it was given the sole responsibility of issuing Aadhar numbers. The bill provided the Unique Identification Authority of India with statutory status. A contract was entered into by the Government of India with  L1 Identity Solutions Operating Co. Private Ltd. for the collection and processing of data. Concerns for the right to privacy emerged as L1 Identity Solutions is a US-based company. Subsequently, Mr. Parvesh Sharma and Retired Justice K S Puttaswamy stepped up to take action. Eventually, they filed a writ of Public Interest Litigation before the Supreme Court of India in November 2012.

ISSUES

The issues raised before the Hon’ble Supreme Court of India are as follows ;

1) The main issue raised before the apex court was whether or not privacy as a right is a constitutional right or not and, if so, where it is mentioned and the extent of the same.

2) Whether or not the judgments in Kharak Singh and M.P. Sharma needs to be revisited by analyzing their ratio decidendi (as these two judgments by the six-judge and eight-judge constitutional bench of the apex court, respectively, stated that the right to privacy is not a constitutional right).

3) Whether or not the whole Aadhar project and, subsequently, the Aadhar act be termed as a ‘money bill’ within the context of the Article 110 of the Indian Constitution.

RULE

The Court considered the following while deciding on the case;

• Article 110 of the Indian Constitution –

Article 110 (1) of the Indian Constitution states what constitutes a money bill in the parliament. 

If any or all the rubrics mentioned in the Article are fulfilled, provided that all provisions are related to one or all of them, only then can a bill be termed as a money bill, which includes using the money for appropriation reserved as Consolidated Fund of India and matters including the custody of the same and the contingency fund (be it any payments or deposits), any matters like an imposition, removal, alteration or any amendment or regulation of any tax, any regulation involving the Government of India regarding the borrowing of funds or any giving of any guarantee to be taken up also including the amendment of any law involving any financial obligations which occurred in the past or any such obligation which shall occur in the future. 

Article 110 (2) defines the various grounds on which a bill can not be defined as a money bill. 

Article 110 (3) states that where there arises a question about a bill being a money bill or not, in such cases, it shall be upon the sole discretion of the speaker of the lower house or the Lok Sabha.

• Article 21 of the Indian Constitution–

This Article of the Indian Constitution provides for the fundamental right to life and personal liberty which can not be abridged from any individual except in cases where there exists a procedure provided by law.

• Article 145 (3) of the Indian Constitution–

This Article mentions about the powers of interpretation of the constitution being granted to the judiciary and wherever there exists a substantial question of law in regards to the interpretation of the constitution the minimum number of judges required to decide such a matter is mentioned which is five as per the Article.

RATIO DECIDENDI

The constitutional bench of 9 apex court judges unanimously ruled that the right to privacy is an inseparable part of all human beings and their personality as a whole. The same was recognized under Article 21 of the Indian Constitution, which defines the right to life and personal liberty.

The Kharak Singh and M.P. Sharma cases were held to be overruled as far as the judgments did not recognize privacy as a fundamental right.

The Aadhar Act was held constitutionally valid after striking down a few provisions, and the Aadhar was mandatory for all who wished to avail of government subsidies, benefits, etc… However, excluding any citizen from availing the same due to lack of Aadhar or any authentication issues can lead to the dignity of such citizen being violated.

ANALYSIS

Critical analysis –

The current judgment is the third longest hearing the apex court has ever witnessed, which lasted for 38 days spanning over four and a half months right after the landmark Keshavananda Bharati case and the Ayodhya Ram Mandir case. The judgment was not explicitly based on a majority opinion. However, there existed a plurality of opinion of varying degrees by all nine judges, although to maintain sanctity and uniformity on what comes as a precedent to all future cases, all judges signed an order and reached a consensus ad idem.

The privacy concern –

The apex court sought its concerns regarding providing additional layers of security to the data collected from the people as its breach can lead to widespread global ramifications. The apex court also explicitly stated that the data collected in the process of issuing the Aadhaar cards could not be provided to any commercial banks, E-wallet companies, payment gateway banks, etc., Providing an Aadhar number for securing admission to colleges or for appearing in board exams and for availing telecommunication services like purchasing a new sim card was not held mandatory. Although Aadhar was not mandatory to be linked with bank accounts, linking it with PAN cards to file IT returns were mandatory.

The Aadhar Act was found to be constitutionally valid after striking down various provisions of the statute like section 33 (2), which provided for the national security exceptional cases where the data could be used, and section 57, which provided for the use of data collected for Aadhar for purposes other than under the law. After this, the act was found to be within the set constraints of the Indian Constitution.

Privacy as a constitutional right –

The layman’s understanding of what liberty is to everyone is that any person should be able to do anything he pleases. However, liberty as a concept is relatively broader than that. The Constitution of India seeks to provide part III in the context of granting the familiar people liberty from any prospective encroachments and inconsiderate restraints enforced or enforceable by the state. The precedence of privacy as a fundamental right was brought up before the apex court. This was also the main contention from the side of the petitioners that in M.P. Sharma and Kharak Singh cases led by a constitutional bench of eight and six judges, respectively, previously held that privacy is not a fundamental right and that the same was neither explicitly nor implicitly mentioned in the Indian Constitution and that the constitutional framers never meant for the right of privacy to be guaranteed or protected for any matter as a constitutional right.

The apex court held that the right to privacy falls within the broader ambit of liberty as it is an individual’s privacy that lets them draw conclusions on important matters concerning their life. Privacy becomes the core part of how freedom shall be exercised as various personal acts bring various mental and physical ramifications upon an individual, thus being an essential part of one’s self-respect and dignity. To quote the apex court, “Privacy is a posit of the human dignity itself.” As a result, the right to privacy was considered an inviolable and inalienable part of a human while declaring it a fundamental right under the right to life and personal liberty.

The international conventions and also a directive principle of state policy enshrined under Article 51 (states about showcasing mutual respect for international rules and obligations) regarding engaging in an international arena about following widely accepted rules and regulations for fostering a global human rights regime were taken into consideration while constituting right to privacy as a fundamental right. Article 12 of the Universal Declaration of Human Rights mentions the right to privacy.

Aadhar bill declared as a money bill –

As per the majority opinion of the apex court, it was held that the Aadhar Act, 2016 had been rightly stated as a money bill in the House of the People as a new concept was introduced known as “the appropriation of money from the fund, the connection and its substantial nexus” and it was iterated that the Aadhar bill has direct nexus with the Consolidated Fund of India and Article 110 of the Indian Constitution.

Although the abuse of power by the Lok Sabha can be pinpointed to bypass the Rajya Sabha by declaring the Aadhar bill as a money bill as only one section, section 7 of the bill out of the 59 total sections mentioned about Consolidated Fund of India, which disintegrates the very purpose of having bicameral legislature in the first place. This violated Article 110 (1) of the Indian Constitution. It is worth mentioning that, per the definition, a money bill should only contain provisions regarding matters or any other matters incidental to those mentioned in the Constitution. As per the Aadhar bill (now an act), section 7 only mentions any expenses which shall incur from the Consolidated Fund of India, while Article 110 of the Indian Constitution mentions explicitly ‘any expenditure charged from the Consolidated Fund of India.’ So technically, even section 7 only refers to the Consolidated Fund of India by mentioning it and does not fall under the specified matters per the Constitution.

CONCLUSION

The Aadhar bill did not have merits to be passed as a money bill in the parliament as Article 112 (3) of the Indian Constitution mentions the expenses that will be charged to the Consolidated Fund of India. Article 110 (c) and Article 110 (e) will not have any subsequent effect as the expenses mentioned in the Aadhar bill are incurred and not charged to the Consolidated Fund of India, as a result of which it can be reasonably concluded that the apex court, in its majority opinion has wrongly interpreted ‘incurred’ with ‘charged.’

Control on disseminating personal information and the extent to which a private entity can use the same shall be declared by a new statute. As the right to privacy, any act or omission described as considerable state action and the safety of people is the same ends of the same spectrum, and a good balance between them is required for peace and harmony.

A law should be created which should be able to recognize the breach of privacy and its ramifications, as the so-called informational privacy needs to be protected. Such a breach is in dire need of recognition as it forms an integral part of the dignity of an individual. At the same time, it also forms an intrinsic part of Article 21, and, on the other hand, the various ways of misuse and breach of data from the web (cyber crimes) are increasing rapidly.

BIBLIOGRAPHY/ENDNOTE

1. Datar, Arghya, et al. “The Right to Privacy Judgment: An Analysis.” Economic and Political Weekly, vol. 52, no. 43, 2017, pp. 49-56.
2. Jhaveri, Rishabh. “Privacy and the Constitution: A Case Comment on KS Puttaswamy v. Union of India.” NUJS Law Review, vol. 10, no. 3, 2017, pp. 553-572.
3. Mathew, Anjana. “Right to Privacy: A Critical Analysis of the KS Puttaswamy v. Union of India Decision.” National Law School Journal, vol. 27, 2019, pp. 113-131.
4. Narasimha, P. “The Right to Privacy and Its Implications: An Analysis of KS Puttaswamy v. Union of India.” Journal of Indian Law and Society, vol. 8, no. 1, 2017, pp. 77-92.
5. Sengupta, Arghya, and Pranjal Kishore. “The Right to Privacy Judgment and Aadhaar.” Economic and Political Weekly, vol. 53, no. 2, 2018, pp. 17-20.
6. Singh, Lovish. “Privacy as a Fundamental Right in India: A Critical Analysis of KS Puttaswamy v. Union of India.” NALSAR Student Law Review, vol. 13, no. 1, 2018, pp. 50-67.
7. Sriram, Vasujith Ram, and Alok Prasanna Kumar. “Privacy and the Right to Information in India: A Comparative Analysis of KS Puttaswamy v. Union of India and the Right to Information Act, 2005.” Journal of Indian Law and Society, vol. 9, no. 1, 2018, pp. 53-68.
8. Swamy, Shruthi V. “Privacy as a Fundamental Right in India: An Analysis of KS Puttaswamy v. Union of India.” Christ University Law Journal, vol. 8, no. 1, 2019, pp. 67-86.